I 


THE  LAW  OP 


SALES  OF  PERSONAL  PROPERTY. 


THE  LAW 


OF 


SALES  OF  PERSONAL  PROPERTY 


AS  NOW  ESTABLISHED  IN 


THE  UNITED   STATES  AND  GREAT    BRITAIN. 


BY 

NATHAN    NEW, 


OF  THE  SAN 


SAN  FBANCISCOt 
BANCROFT-WHITNEY    CO. 

LAW  PUBLISHERS  AND  LAW  BOOKSELLERS. 

1887. 


v\ 

k 


COPYRIGHT,  1887. 
BY  NATHAN  NEWMABK 


PRE  F  ACE  • 


THIS  work  is  offered  to  the  profession  as  the  result  of 
an  attempt  to  make  a  concise,  complete,  and  conven- 
ient presentation  of  the  intricate  and  expanding  law 
relating  to  Sales  of  Personal  Property.  The  aim  of  the 
writer  is  to  exhibit,  within  a  small  compass,  in  a  sug- 
gestive manner,  which  may  be  serviceable  to  the  active 
practitioner,  as  well  as  to  the  student  and  investigator, 
the  sum  and  substance  of  the  present  law  of  the  sub- 
ject stated,  as  it  is  determined  by  English  and  American 
courts  and  developed  in  legal  dictionaries,  phrase- 
books,  or  commentaries,  in  treatises,  monographs,  or 
essays  dealing  wholly  or  partly  with  this  subject  or 
with  cognate  topics,  in  leading  and  recent  cases,  and 
in  other  decisions  incorporated  as  being  of  special 
interest  or  illustrative  force. 

The  arrangement  adopted  will  be  seen  to  deal,  first, 
with  the  formation,  effect,  and  performance  of  the  con- 
tract, and  with  its  features  as  established  at  common 
law  and  under  the  statute  of  frauds  ;  then  with  direct 
and  collateral  stipulations  connected  with  the  contract, 
and  with  the  grounds  which  render  the  contract  liable 
to  defeat  and  avoidance ;  and  finally,  with  the  remedies 
of  the  parties  for  a  breach  of  the  contract.  Special  con- 
sideration has  been  given  to  the  particular  topics,  some- 
times made  the  subject  of  extended  investigation,  of 
transactions  resembling  sales,  executory  sales  in  all  their 


Vl  PREFACE. 

phases,  transfer  of  title,  bona  fide  purchasers,  mistake, 
failure  of  consideration,  warranty,  and  the  seller's  spe- 
cial remedies  against  the  goods.  It  is  hoped  that  the 
mode  of  arrangement,  the  use  of  various  devices  of 
type,  and  the  fullness  of  the  index  will  render  the 
matter  readily  accessible,  and  the  work  in  every  way 
suitable  for  immediate  consultation  at  court  or  in  the 
office. 

NATHAN  NEWMARK. 
SAN  FRANCISCO,  October,  1887. 


CONTENTS. 


CHAPTER  I. 

NATURE. 

§  1.  Definitions. 

§  2.  Scope  of  term. 

2  3.  Elements  of  contract. 

§  4.  Consideration. 

§  5.  Transfer  of  title. 

\  6.  Classification  of  sales. 


CHAPTER  II. 

SIMILAR  TRANSACTIONS. 

§    7.  Sale  or  assignment. 

§    8.  Sale  or  preliminary  negotiation. 

g    9.  Sale  or  executory  agreement. 

§  10.  Sale  or  gift. 

g  11.  Sale  or  exchange. 

§  12.  Difference  in  remedies. 

§  13.  Sale  of  liquor  by  club. 

\  14.  Sale  or  bailment. 

\  15.  Arrangements  with  millers. 

§  16.  Deposits  in  grain  elevators. 

§  17.  Delivery  for  resale. 

#  18.  Delivery  to  manufacturer. 

§  19.  Delivery  under  conditional  sales. 

g  20.  Privilege  of  purchase. 

2  21.  Privilege  of  return. 

?  22.  Sale  or  lease. 

g  23.  Sale  or  pledge. 

§  24.  Sale  or  mortgage. 

§  25.  Sale  or  consignment. 

§  26.  Remedies  in  such  transactions. 

\  27.  Sale  or  payment. 

2  28.  Further  distinctions. 


viii 


CONTENTS. 


CHAPTER  III. 

CONSENT. 

?  29.    In  general, 

\  30.    When  lacking. 

\  31.    Parties  consenting. 

?  32.    Offer  to  sell. 

g  33.    Correspondence  of  acceptance  with  offer. 

\  34.    Applications  of  requirement. 

\  35.    Time  for  accep,  ta*ice. 

§  36.    Limiting  time  for  acceptance. 

\  37.    Modes  of  acceptance. 

\  38.    Acceptance  by  acts. 

Contract  by  letter. 

Construction  of  correspondence. 

Preliminary  negotiation  or  final  agreement. 

Reduction  to  writing,  etc. 

Contract  by  telegraph. 

Implied  sales. 


CHAPTER  IV. 

PARTIES. 

In  general. 

Insane  and  incompetent  persons. 
Intoxicated  persons. 
i  Infant's  sales  and  purch^jpes. 
"  Infant's  necessaries. 
Express  contract  for  necessaries. 

!ng  purchases  of  infants. 
;representation  of  age  by  infant, 
itification  after  majority. 
\  54.    Disaffirming  transaction. 

1  55.    Married  women  at  common  law. 

2  56.    In  equity. 

5  57.    Under  statutes. 

'i  5<\    Sole  traders  by  custom. 

g  59.    Separate  trading  under  special  enactments. 


CONTENTS. 

g  116.  Requisites  to  transfer  of  title. 

g  117.  Need  of  delivery. 

g  118.  Need  of  assent. 

g  119.  Unfinished  chattel. 

g  120.  Ship-building  contracts. 

g  121.  Payment  of  instalments  of  price. 

g  122.  Unattached  materials. 

g  123.  Title  to  chattels  not  finished. 

g  124.  Title  to  unfinished  vessels. 

ny  JJf  ^ 
vv  ^ 

CHAPTER 

APPROPRIATION. 

g  125.  Appropriation  in  generaL 

g  126.  Scope  of  term. 

g  127.  Acts  of  appropriation. 

g  128.  Appropriation  by  seller. 

g  129.  Determining  election. 

g  130.  Assent  to  appropriation. 

g  131.  Acts  of  assent. 

g  132.  Restricted  appropriation,  etc. 

g  133.  Conformity  to  contract. 

g  134.  Excess  in  quantity  of  goods. 

g  135.  Substitution  of  other  goods. 

g  136.  Delivery  as  showing  appropriation,  etc. 

g  137.  Delivery  to  carrier. 

g  138.  Delivery  "  free  on  board." 

g  139.  Dispatching"  goods. 

g  140.  Handing  over  documents. 

g  141.  Accepting  or  discounting  bill  of  exchange. 


CHAPTER  XII. 

RESERVATION  OP  CONTROL. 

g  142.  In  general. 

g  143.  Evidence  of  intention. 

g  144.  Passing  of  title  to  buyer. 

g  145.  Rights  of  seller's  transferee. 

g  146.  Effect  of  delivery  to  carrier. 

g  147.  Bill  of  lading  to  seller's  order. 

g  148.  Delivery  on  board  buyer's  vessel. 


Xii  CONTENTS. 

$  149.  Disposition  of  bill  of  exchange. 

2  150.  Transmission  to  buyer  of  indorsed  bill  of  lading. 

2  151.  Transmission  to  secure  advances. 

2  152.  Seller's  transmission  to  agent  of  bill  of  lading,  etc. 


CHAPTER   XIII. 

TRANSFER    OF    TITLE. 

2  153.  In  general 

5  154.  Contract  or  conveyance. 

§  155.  Intention  to  pass  title. 

\  156.  Intention  governs. 

2  157.  Sufficiency  of  intention. 

2  158.  Without  payment  or  delivery 

2  159.  Right  of  possession. 

g  160.  Change  of  risk. 

2  161.  Title  and  risk. 

2  162.  Assumption  of  risk. 

2  163.  Stipulations  concerning  risk,  delivery,  and  payment. 

2  164.  Title  to  undelivered  chattel. 

2  165.  Delivery  sufficient  to  pass  title. 

2  166.  Delivery  as  prerequisite  to  transfer  of  title. 

2  167.  When  delivery  not  such  prerequisite. 

2  168.  Estoppel  of  seller, 

2  169.  Estoppel  of  warehouseman,  etc. 

CHAPTER  XIV. 

BONA  FIDE  PURCHASERS. 

2  170.  General  doctrines. 

2  171.  Title  only  from  owner,  etc. 

1  172.  Goods  in  another's  wrongful  possession. 

2  173.  Judicial  sales, 

$  174.  Apparent  exceptions. 

§  175.  Ostensible  ownership  or  authority. 

3  176.  Purchase  of  stolen  goods. 

\  177.  Liability  of  agent  or  bailee. 

2  178.  Markets  overt 

g  179.  Extent  of  exemption. 

$  180.  Not  recognized  in  this  country. 

$  181.  Lost  chattels. 


CONTENTS.  Xlll 

g  182.  Sales  by  trespassers. 

g  183.  Illegal  levy  and  sale. 

g  184.  Unauthorized  sales  by  bailees. 

g  185.  Transfers  of  unforf eited  pledges. 

g  186.  Sales  of  forfeited  pledges. 

g  187  Delivery  of  goods  for  sale. 

g  188.  Transfer  by  factor. 

g  189.  Purchase  generally  from  one  lacking  title 

g  190.  State  of  title  governs. 

g  191.  Demand. 

g  192.  Purchase  from  one  having  a  voidable  or  defeasible  title. 

g  193.  Sale  with  condition  subsequent. 

g  194.  Sale  with  condition  precedent. 

g  195.  Delivery  as  waiver  of  condition. 

g  196.  Seller's  possession, 

g  197.  Transfers  by  fraudulent  vendees. 

g  198.  Superior  equity  of  innocent  purchaser. 

g  199.  Estoppel  of  owner 

g  200.  Voidable  or  defeasible  title. 

g  201.  Title  of  innocent  purchaser. 

g  202.  Title  of  fraudulent  vendee. 

g  203.  Statements  of  doctrine. 

g  204.  Prevalence  of  exemption. 

g  205.  Limitations  upon  exemption. 

g  206.  Obtaining  goods  by  false  pretenses. 

CHAPTER    XV. 
s       FACTORS'  ACTS. 

g  207.  Factors'  acts  in  general. 

g  208.  Occupations  covered. 

g  209.  Intrusting  goods  or  documents. 

g  210.  Apparent  ownership  or  authority. 

CHAPTER  XVI. 
/      DOCUMENTS  OF  TITLE. 

g  211.  Signification, 

g  212.  Bills  of  lading, 

g  213.  Nature  and  effect, 

g  214.  Shipping  receipts, 

g  215.  Estoppel  of  ship-owners. 
NEWMARK  SALES.  — a. 


CONTENTS. 

2  216.  Warehouse  receipts. 

2  217.  Documents  of  title. 

2  218.  Statutory  scope  of  term. 

2  219.  Delivery  orders. 

2  220.  Dock  warrants,  etc. 

CHAPTER  XVH. 

DELIVERY. 

2  221.  Scope  of  term. 

2  222.  Actual  and  constructive  delivery. 

2  223.  Seller's  custody. 

2  224.  Transfer  of  title  without  delivery. 

2  225.  Delivery  and  payment  concurrent. 

2  226.  Credit  sale. 

2  227.  Delivery  under  expectation  of  payment. 

2  228.  Duty  to  deliver. 

2  229.  Place  of  delivery. 

2  230.  Designation  of  place  of  delivery. 

2  231.  Time  of  delivery. 

§  232.  Reasonable  time. 

2  233.  Divisions  of  time. 

2  234.  Computation  of  time. 

2  235.  Quantity  delivered. 

2  236.  Contract  for  indefinite  quantity. 

2  237.  Partial  delivery. 

2  238.  Delivery  by  instalments. 

2  239.  Mode  of  making. 

2  240.  Symbolical  delivers 

2  241.  Constructive  delivery. 

2  242.  Delivery  of  bill  of  sale,  etc. 

2  243.  Delivery  of  bills  of  lading. 

2  244.  Delivery  of  warehouse  receipts. 

2  245.  Excuses  for  failure  to  deliver,  etc. 

2  246.  Relation  to  third  parties. 

2  247.  Sufficiency  of  delivery  against  creditors. 

2  248.  Delivery  to  carrier. 

2  249.  Seller's  duties  concerning  such  delivery 

2  250.  Directions  concerning  transportation. 

2  251.  Delivery  to  warehouseman. 

2  252.  Inspection  and  acceptance. 

2  253.  Delivery  to  pass  title. 

2  254.  Various  points  concerning  delivery. 


CONTENTS. 


XV 


CHAPTER  XVIIL 

ACCEPTANCE. 

§  255.  Buyer's  duties  in  general. 

§  256.  retching  goods. 

2  257.  Acceptance  in  general. 

\  258.  Distinguished  from  receipt. 

\  259.  Receiving  or  taking  possession. 

I  260.  Right  of  inspection. 

\  261.  What  constitutes  acceptance. 

g  262.  Right  of  rejection. 

1  263.  Buyer's  course  on  rejection. 
§  264.  Seller's  waiver  of  notice,  etc. 
§  265.  Buyer's  waiver  of  objections. 
§  266.  Divergence  in  quality,  etc. 

\  267.  Where  delivery  by  instalments. 

2  268.  Article  to  be  satisfactory,  etc. 


CHAPTER  XIX. 

PAYMENT. 

2  269.  Payment  in  general. 

\  270.  Payment  In  cash. 

§  271.  Payment  in  negotiable  paper. 

2  272.  Credit  sales. 

?  273.  Mode  of  making. 


CHAPTER  XX. 

j/     STATUTE    OF   FRAUDS. 

§  274.  In  general. 

\  275.  Contracts  covered. 

I  276.  Things  attached  to  the  soil. 

1  277.  Incorporeal  personalty. 
§  278.  Prescribed  amount. 

§  279.    Earnest  or  part  payment. 

2  280.    Delivery. 

\  281.    Acceptance  and  receipt. 

I  282.    Acceptance. 

g  283.    What  constitutes  acceptance. 


XVi  CONTENTS. 

g  284.  Actual  receipt. 

§  2S5.  Intervention  of  carriers. 

§  286.  Memorandum  in  general. 

\  287.  Form  of  memorandum. 

\  288.  Contents  of  memorandum. 

§  289.  Parol  evidence  concerning  memorandum. 

1  290.  Modification  of  original  bargain. 
§  291.  Signature  to  memorandum. 

\  292.  Compliance  by  agents. 

2  293.  Broker's  memorandum. 


CHAPTER  XXI. 

CONDITIONAL  SALES. 

£  294.  Conditions  in  general. 

§  295.  Conditions  in  sales. 

2  296.  Impossibility  of  performance. 

§  297.  Stipulations  concerning  time  and  place  of  performance. 

\  298.  Notice. 

•  \  299.  Payment  as  condition  precedent. 

g  .300.  Conditions  sustained  despite  delivery. 

§  301.  Bights  of  creditors  and  purchasers. 

§  302.  Waiver,  estoppel,  etc. 

§  303.  Waiver  by  delivery. 

§  304.  Seller's  delay,  etc. 

§  305.  Resumption  of  possession. 

•  g  306.  Sales  on  instalment  plan. 
§  307.  Various  conditions. 

§  308.  Sales  "  on  trial." 

§  309.  Right  to  return  goods. 

§  310.  Sale  or  return. 

•  §  311.  Sale  of  goods  "  to  arrive." 

$  312.  Sake  by  sample  or  description. 

\  313.  Genuine  character  of  securities. 

g  314.  Failure  to  furnish  stipulated  securities. 


\  315.    In  general. 
\  316.    Kinds. 


CHAPTER  XXII. 

WARRANTY    IN    GENERAL. 


CONTENTS.  XVil 

2  317.  Form  and  requisites. 

2  318.  Expressions  of  opinion,  etc. 

2  319.  Warranties  by  agents. 

2  320.  Patent  defects. 

2  321.  Soundness  or  other  qualities  of  animals 

2  322.  Qualified  or  conditional  warranty. 

2  323.  Notice  of  defects. 


CHAPTER    XXIII. 

j^     WARRANTY  OF  TITLE. 

\  324.  In  general. 

2  325.  Transfer  of  interest,  etc. 

2  326.  Transfer  of  incorporeal  personalty. 

2  327,  General  doctrines. 

2  328.  Seller's  possession. 

2  329  Breach  by  dispossession,  etc. 

I  330.  Existence  and  removal  of  encumbrances. 


CHAPTER  XXIY. 

v       WARRANTY  OF  QUALITY. 

2  331.    Caveat  emptor. 

\  332.    Opportunity  for  inspection. 

&  333.    Implied  warranty  of  quality. 


CHAPTER  XXV. 

SALES  BY  SAMPLE. 

§  334.  Exhibition  of  sample. 

2  335.  Opportunity  to  examine  bulk. 

§  336.  Scope  of  warranty  or  undertaking. 

2  337.  Conclusiveness  of  acceptance. 

§  338.  Finality  of  inspection. 

2  339.  Liability  of  manufacturer. 

§  340.  Buyer's  remedies. 


xviii  CONTENTS. 

CHAPTER  XXVI. 

SALES  BY   DESCRIPTION. 

£  341.  Seller's  liability. 

\  342.  Undertaking  as  condition  or  warranty. 

?  343.  Remedies  as  affecting  construction. 

\  844.  Liability  of  manufacturer. 

\  345.  Words  of  description. 

CHAPTER  XXVII. 

^  WARRANTY  OF    FITNESS,   ETC. 

\  346.    Fitness  for  particular  purpose. 

\  347.    Merchantable  character. 

§  348.    Warranty  on  sale  of  provisions. 

CHAPTER  XXVIII. 

^^         LATENT  DEFECTS. 

5  349.    Latent  defects  in  general. 

\  350.    Seller's  knowledge  or  fault  lacking. 

CHAPTER  XXIX. 

^REMEDIES   FOR   BREACH   OF  WARRANTY. 

§  351.    In  general. 

§  352.    Return  of  goods. 

g  353.    Damages. 

CHAPTER   XXX. 


354.  Fraud  in  general. 

355.  Fraud  on  buyer  and  caveat  emptor. 

356.  Reliance  upon  seller's  representations. 

357.  What  constitutes  seller's  fraud. 


CONTENTS. 


xix 


358.  Buyer's  remedies  for  fraud. 

359.  Fraud  on  seller. 

360.  Buyer's  fraudulent  devices. 

361.  Fraud  upon  creditors. 


CHAPTER  XXXI. 

ILLEGAL  SALES. 

§  362.  In  general. 

\  363.  Knowledge  of  guilty  purpose. 

\  364.  Insufficiency  of  mere  knowledge. 

\  365.  Participation  and  aiding. 

§  366.  Executory  and  executed  contracts. 

$  367.  Sales  illegal  at  common  law. 

\  368.  Violation  of  public  policy. 

\  369.  Wagering  contracts. 

§  370.  Concerning  public  offices  and  officers. 

§  371.  Concerning  litigation. 

\  372.  Restraint  of  trade. 

2  373.  Transfer  of  good-will. 

\  374.  Violation  of  statutes. 

§  375.  Sales  of  intoxicating  liquors. 

\  376.  Sunday  sales. 


CHAPTER   XXXII. 


MISTAKE. 

\  377.  Concerning  terms  of  contract. 

\  378.  Touching  essence  of  contract. 

\  379.  As  to  subject-matter. 

|  380.  Concerning  identity  of  article. 

?  381.  Concerning  price. 

g  382.  Concerning  quantity. 

\  383.  Concerning  quality. 

\  384.  Concerning  person. 

\  385.  Remedies  of  parties. 


CONTENTS. 

CHAPTER  XXXIII. 

FAILURE  OF  CONSIDERATION. 

2  386.  What  constitutes. 

2  337.  Worthlessness  of  article. 

2  388.  Valueless  obligation. 

2  389.  Partial  failure  of  consideration. 

2  390.  Remedy  for  such  failure. 

CHAPTER    XXXIV. 

,  .    SELLER'S  REMEDIES. 

2  391.  In  general. 

I  392.  Damages  for  non-acceptance. 

I  393.  Notice  not  to  manufacture. 

1  394.  Forms  of  action. 

2  395.  Waiting  for  expiration  of  credit. 
2  396.  Remedies  against  the  goods. 

CHAPTER    XXXV. 

x      BUYER'S  REMEDIES. 

2  397.  In  general. 

2  398.  Damages  for  failure  to  deliver. 

2  399.  Restrictions  on  recovery. 

2  400.  Suit  for  failure  to  deliver. 

2  401.  Where  title  in  buyer. 

2  402.  Delay  in  delivery. 

\  403.  Divergence  of  goods  from  contract. 

CHAPTER  XXXVI. 

RESALE. 

g  404.  Right  of  resale. 
2  405.  Mode  of  resale. 
2  406.  Recovery  after  resale. 


CONTENTS. 

CHAPTER  XXXVII. 
^^      SELLEK'S  LIEN. 

§  407.    In  general. 

1  40Q*    "^lthholdi1^  or  countermanding  delivery. 
«  409.    Giving  credit. 

2  410.    Sub-sale  and  estoppel. 
CHAPTER    XXXVIII. 

>      STOPPAGE  IN  TRANSIT!!. 

§  411.    In  general. 

§  412.    Buyer's  insolvency. 

2  413.    Duration  of  transit. 

2  414.    Capacity  of  middleman. 

|  415.    Delivery  terminating  transit. 

416.    By  whom  right  exercised. 
2  417.    Mode  of  exercising  right 
2  418.    Mode  of  defeating  right. ' 


THE 


CHAPTER  I. 

NATURE. 

§  1.  Definitions. 

§  2.  Scope  of  term. 

§  3.  Elements  of  contract. 

\  4.  Consideration. 

§  5.  Transfer  of  title. 

\  6.  Classification  of  sales. 

§  1,  Definitions.  —  Of  general  character.  Sale  is  said 
to  be  a  word  of  precise  legal  import,  which  means  at  all 
times  a  contract  between  parties  to  give  and  to  pass  rights 
of  property  for  money,  which  the  buyer  pays  or  prom- 
ises to  pay  for  the  thing  bought  and  sold.1  It  is  also  de- 
scribed as  an  agreement  by  which  one  of  the  contracting 
parties,  called  the  seller,  gives  a  thing  and  passes  title 
to  it,  in  exchange  for  a  certain  price  in  current  money, 
to  the  other  party,  who  is  called  the  buyer  or  purchaser, 
and  who,  on  his  part,  agrees  to  pay  such  price.2 

By  text-writers  and  commentators.  The  leading  text- 
writers  define  sale  as  a  transfer  of  the  absolute  or 
general  property  in  a  thing  for  a  price  in  money,3 
and  as  a  transfer  of  the  absolute  title  to  property  for 
a  certain  agreed  price.4  And  the  legal  commentators 
define  sale  as  a  transmutation  of  property  from  one 
man  to  another  in  consideration  of  some  price,5  or  as  a 
contract  for  the  transfer  of  property  from  one  person  to 
another  for  a  valuable  consideration.6 
NEWMABK  SALES.  — -1. 


§  1  XATUKE.  2 

Defects  of  ordinary  definitions.  But  the  ordinary  defi- 
nition, of  a  sale,  as  a  transmutation  of  property  from 
one  person  to  another  for  a  price,  does  not  fully  express 
all  the  essential  elements  of  the  contract.7  A  more  com- 
plete enumeration  of  these  would  be,  competent  parties 
to  enter  into  a  contract,  an  agreement  to  sell,  and  the 
mutual  assent  of  the  parties  to  the  subject-matter  of  the 
sale  and  the  price  to  be  paid  therefor.8 

Words  constituting  sale  of  a  chattel.  Independently 
of  the  statute  of  frauds,  any  words  importing  a  bargain, 
whereby  the  owner  of  a  chattel  signifies  his  willingness 
and  consent  to  sell  it,  and  whereby  any  other  person 
signifies  his  willingness  and  consent  to  buy  it,  in 
prcBsenti,  for  a  specified  price,  would  be  a  sale  and 
transfer  of  the  right  to  the  chattel.9 

1  Williamson  v.  Berry,  8  How.  495,  544.    And  see  Hutrnacher  r. 
Harris,  33  Pa.  St.  491, 498  ;  Bigley  v.  Risher,  63  Pa.  St.  152, 155  ;  Maeka- 
ness  v.  Long,  85  Pa.  St.  158  ;  Edwards  v.  Cottrell,  43  Iowa,  U*4,  204. 
Various  interpretations  of  word  collected  :  2  Abbott's  Law  Diet.  442, 
443.    A  disposition  of  public  lands  in  satisfaction  of  military  land 
warrants  is  not  a  sale  entitling  a  State  to  percentage  under  its  act 
of  admission  :  Five  Per  Cent  Cases,  110  U.  S.  471,  479. 

2  Eldridge  v.  Kuehl,  27  Iowa,  160, 173 ;  2  Bouvier  Law  Diet.  tit.  Sale 
(15th  ed.)  606  ;  Winfield's  Words,  etc.  547.    And  see  Madison  Avenue 
etc.  Church  v.  Baptist  Church,  46  N.  Y.  131, 139.    The  contract  of  sale 
is  an  agreement  by  which  one  gives  a  thing  for  a  price  in  current 
money,  and  the  other  gives  the  price  in  order  to  have  the  thing 
itself :  La.  Civ.  Code,  art.  2439  ;  Stims.  Am.  Stat.  Law,  g  4560. 

3  Benjamin  on  Sales,  §  1 ;  Wittowsky  r.  Wasson,  71 1ST.  C.  451.    See 
Landreth  Sale,  12.    And  compare  Campb.  Sales,  1. 

4  Story  on  Sales,  §  1 ;  Creveling  r.  Wood,  95  Pa.  St.  152, 158.    See  2 
Schouler  on  Personal  Property,  \  200.    But  compare  2  Abbott's  Law 
Diet.  tit.  Sale,  p.  441. 

5  2  Blackst.  Com.  446.    Or  recompense  in  value:  Parker  r.  Don- 
aldson, 2  Watts  &  S.  19.    Accompanied  in  the  case  of  goods  and 
chattels,  whenever  it  is  practicable,  with  a  deliver}'  of  the  article  to 
the  purchaser:  Patten  v.  Smith,  5  Conn.  196.    Compare  Hilliard  on 
Sales,  \  1 ;  Long  on  Sales,  1. 

6  2  Kent  Com.  468.    See  Madison  Ave.  etc.  Church  v.  Baptist 
Church,  46  N.  Y.  131, 139  ;  Five  Per  Cent  Cases,  110  U.'S.  471,  478,  4SS. 

7  Gardnerv.  Lane,  12  Allen,  39,43.    See  2  Abbott's  Law  Diet.  442. 

8  Gardner  v  Lane,  12  Allen,  39,  43.    If  any  of  these  ingredients  be 
wanting,  there  is  no  sale  :  Atkinson   on  Sales,  5.    See   Wlnfleld's 
Words,  etc.  547  ;  2  Abbott's  Law  Diet.  442.  , 

9  De  Fonclear  v.  Shottenkirk,  3  Johns.  170, 174  ;  Fancher  v.  Good- 
man, 29  Barb.  315,  318. 


§  2.  Scope  of  term. —  Technical  limitation  to  person- 
alty. The  term  u sales"  is  at  the  present  time,  as  a 
general  rule,  technically  limited  in  its  application  to 
personal  property,  while  the  corresponding  transfers  of 
real  property  are  usually  treated  under  the  title  of 
"  vendors  and  purchasers."1 

As  contract  for  transfer.  But  it  has  been  suggested 
upon  a  critical  survey  of  the  various  definitions  of  sale, 
that  the  view  which  seems  to  reconcile  all  the  uses  of  the 
word  "sale,"  as  in  the  expressions  " conditional  sales," 
•'executory  sales,"  etc.,  most  satifactorily,  is  to  regard 
sale  as  a  contract  or  agreement  for  transferring  owner- 
ship,2 and  not  as  the  very  transfer  itself.3  It  may  then 
be  properly  applied  to  lands  and  rights  in  action  as  it 
daily  is,  as  well  as  to  chattels.* 

As  transfer  of  interest.  In  a  comprehensive  sense,  a 
sale  is  a  parting  with  one's  interest  in  a  thing  for  a 
valuable  consideration.5  But  such  a  transfer  is  more 
generally  termed  an  assignment.6 

Usual  meaning.  A  very  complete  definition  of  sales 
in  their,  usual  aspects  is  found  in  the  statement  that  by 
the  term  "sale"  is  meant  the  transfer  of  the  property 
in  a  thing,  whether  real  or  personal,  for  a  price  in 
money,  and  not  in  goods  or  other  property.7 

1  Rehouler  on    Personal   Property,  §  199.    And   see  Pomeroy's 
Article,  4  Johns.  Cycl.  1640. 

2  See  Oranam -s  Blacfeb.  Sales,  Introd.  ix.    Consult  Landreth  Sale, 
11.    And  com  oare  CaniDb.  Sales,  2. 

3  Abbotts  Law  Diet.  tit.  Sale,  p.  442.    The  term  "sales"  in  its 
largest  sense,  may  include  every  agreement  for  the  transferring  of 
ownership,  whether  immediate  or  to  be  completed  afterwards  :  Cun- 
ningham v.  Ashbrook,  20  Mo.  553,  556. 

4  1  Abbott's  Law  Diet.  tit.  Sale,  p.  442.    And  there  may  thus  be  a 
Justifiable  division  of  sales  into  those  which  are  executed,  either  by 
operation  of  law  upon  the  contract,  or  by  after  acts,  and  those  which 
are  executory,  or  yet  to  be  carried  into  effect  by  conveyance,  assign- 
ment, or  delivery:    2  Abbott's  Law  Diet.  tit.  Sale,  p.  442.    By  the 
Roman  law,  a  sale  was  not  an  immediate  transmutation  of  property, 
but  a  contract  of  mutual  and  personal  engagements  for  the  trans- 
ference of  the  thing  on  the  one  hand,  and  the  payment  of  the  price 
on  the  other,  without  regard  to  the  time  of  performance  ou  either 


$$   3-4  NATURE.  4 

part,  that  being  left  to  be  regulated  by  the  agreement  of  the  parties  : 
Bell  on  Sale,  9 ;  Cunningham  v.  Ashbrook,  20  Mo.  ,533,  557.  The  seller 
was  bound  to  deliver  the  thing  in  property  to  the  buyer  at  the  time 
agreed  on,  and  the  buyer  to  pay  the  price  in  the  manner  settled 
between  them :  Cunningham  v.  Ashbrook,  20  Mo.  553,  5w.  And  see 
Story  on  Sales,  §  2,  et  seq.  But  compare  Benjamin  on  Sales,  2  405,  et 
seq. ;  2  Schouler  on  Personal  Property,  \  237. 

5  Western  Mass.  Ins.  Co.  v.  Hiker,  10  Mich.  281 ;  Winfield's  Words 
etc.  547.    It  is  a  contract  by  which  for  a  pecuniary  consideration 
called  a  price,  one  transfers  to  another  an  interest  in  property :  Cnl. 
Civ.  Code,  §  1721 ;  Dak.  Civ.  Code,  g  981 ;  Stims.  Am.  Stat.  Law,  g  4560. 

6  See  \  7,  on  SALK  OB  ASSIGNMENT. 

7  Pomeroy's  Article,  4  Johns.  Cycl.  1646. 

§  3.  Elements  of  contract.  —  Enumeration  of.  Three 
particulars  are  included  in  a  valid  sale,  namely,  a  thing 
which  is  the  subject  of  it,  a  price,  and  the  consent  of 
parties.1 

At  common  law.  And  al  common  law  these  were  the 
only  things  essential  to  a  valid  sale  of  personal  prop- 
erty, and  their  concurrence  rendered  the  sale  complete, 
so  that  the  title  passed  without  anything  more.2 

Under  civil  law.  So  under  the  civil  law,  as  followed 
in  this  country,  throe  circumstances  concur  to  the  per- 
fection of  the  contract,  to  wit,  tho  thing  sold,  the  price, 
and  the  consent 3 

1  Schermerhorn  v.  Talman,  14  X.  Y.  93   117;  Long  on  Sales,  3; 
Wlnfleld'a  Words,  etc.  5^3.    If  the  subject  of  the  sale  have  no  exist- 
ence, actually  or  potentially,  there  can  be  no  valid  sale:   Wlnfleld'a 
Words,  etc.  548.    Like  effect :  2  Kent  Com.  468.    And  compare  Gard, 
H:T  r.  Lane, 12  Allen. 39, 43,  ascited  in  g  1 ;  Pomeroy's  Article,  4  Johns. 
Cycl.  1646. 

2  Cunningham  v.  Ashbrook,  53  Mo.  553,  556.    And  see  2  Blackst. 
Com.  448  :  Bloxam  v.  Sanders,  4  Barn.  &  C.  941,  948.    Delivery  of  the 
goods  was  not  a  necessary  element  in  a  sale,  although  it  often  be- 
comes important  f  >r  other  reasons,  not  concerning  the  transfer  of 
title  :  See  Pomeroy's  Article,  4  Johns.  Cycl.  1647. 

3  Kleiupeter  v.  Harrison,  21  La.  An.  196,  197 ;  La.  Civ.  Code,  art. 
2439.    And  see  Ga.  Civ.  Code,  £  2629. 

§  4.  Consideration. —  Valuable  consideration.  A  sale 
is  sometimes  said  to  embrace  every  transfer  for  a  valu- 
able consideration,1  whether  paid-in  cash  or  other  prop- 
erty.2 And  in  a  general  and  popular  sense,  the  sale  of 
an  article  signifies  the  transfer  of  property  from  one 


5  NATURE.  g  4 

person  to  another  for  a  consideration  of  value,  without 
reference  to  the  particular  mode  in  which  the  consid- 
eration is  paid.3 

Money  price.  But  its  technical  and  narrow  sense  is 
that  of  a  transfer  paid  or  agreed  to  be  paid  in  money.4 
And  ordinarily  this  is  the  distinction  taken  between  a 
sale  and  a  barter  or  exchange  of  goods  for  goods.5 

Estimation  in  money  standard.  Yet  it  is  perhaps 
more  accurately  declared  that  a  sale  is  a  transfer  of 
property  for  a  fixed  price  in  money,  or  its  equivalent,6 
and  the  feature  of  estimation  in  a  money  standard  is 
sometimes  made  the  criterion  to  determine  whether  a 
transaction  is  a  sale  or  an  exchange.7 

In  various  aspects.  The  existence  of  a  valuable  con- 
sideration is  also  generally  deemed  to  distinguish  a 
sale  from  a  gift,  or  voluntary  transfer,  without  consid- 
eration.8 A  sale  ex  vi  termini  means  a  conveyance  for 
a  fair  consideration.9  And  a  power  of  attorney,  under 
seal,  irrevocable,  and  expressly  stated  to  be  for  "value 
received,"  to  transfer  a  registered  bond,  is  prima  facie 
a  sale  of  the  bond,  for  a  present  consideration,  to  the 
person  in  whose  favor  it  was  made,  and  relieves  the 
transferrer  from  proving  that  he  paid  value  therefor  at 
the  time  of  the  transfer.10  A  delivery  of  articles,  in  con- 
sideration of  being  paid  what  they  are  worth,  consti- 
tutes a  sale.11 

1  See  2  Kent  Com.  468. 

2  Madison  Ave.  etc.  Church  v.  Baptist  Church,  46  N.  Y.  131, 140  ; 
S.  C.  11  Abb.  Pr.  N.  S.  132,  140. 

3  Howard  v.  Harris,  8  Allen,  297,  299.    And  it  is  laid  down  that 
where  goods  are  delivered  upon  a  contract  for  a  valuable  consider- 
ation,  whether  in    money  or  money's  worth,  then  the  property 
passes,  and  there  is  a  sale  and  not  a  bailment:  South  Aust.  Ins.  Co. 
v.  Kandell,  Law  K.  3  P.  C.  101. 

4  Howard  v.  Harris,  8  Allen,  297,  299.     And  see  Commonw.  v. 
Davis,  12  Bush,  240,  241. 

5  See  Commonw.  v.  Clark,  14  Gray,  367,  372 ;  Mitchell  v.  Gile,  12 
N.  H.  390,  395  ;  2  Blackst.  Com.  446. 

6  Five  Per  Cent  Cases,  110  U.  S.  471, 478. 


7  See  Gunter  v.  Lecky,  30  Ala.  591,  596  ;  Picard  v.  McCormick,  11 
Mich.  68,  77. 

8  See  Gray  v.  Burton,  55  N.  Y.  68,72. 

9  Laird  v.  Scott,  5  Heisk.  348  ;  Winfield's  Words,  etc.  547. 

10  Pennsylvania  Company's  Appeal,  86  Pa.  St.  102, 106. 

11  Hill  v.  Hill,  Coxe,  261 ;  1  Am.  Dec.  206. 

£  5,  Transfer  of  title,  —  As  feature  of  sale.  A  sale 
viewed  in  regard  to  its  effect  is  a  contract  between  two 
parties,  one  of  whom  acquires  thereby  a  property  in 
the  thing  sold,  and  the  other  parts  with  it  for  a  valu- 
able consideration.1  In  the  legal  import  of  the  word,  it 
implies  the  transferring  of  property2  from  the  seller  to 
the  buyer  for  a  price,3  and  includes  not  only  the  idea 
of  divesting  the  seller  of  the  title,  but  also  of  vesting  it 
in  the  buyer.4 

Immediate  or  postponed.  There  must  be  an  immedi- 
ate transfer  of  tho  title  to  constitute  a  present  sale  or 
"bargain  and  sale"  at  common  law,  as  distinguished 
from  a  mere  agreement  for  a  future  sale  or  "  executory 
agreement."5  Thus,  it  is  competent  for  the  parties 
expressly  to  agree  that  the  the  title  to  the  property 
shall  not  pass,  except  on  the  performance  of  a  preced- 
ent or  concurrent  condition,  in  which  case  there  will 
not  be  a  complete  sale,  but  an  executory  contract.6  So 
when  anything  remains  to  be  done  in  the  way  of  specific- 
ally appropriating  the  goods  sold  to  the  contract,  the 
agreement  is  executory,  and  the  property  does  not  pass.7 

Absolute  or  general.  The  fact  that  there  must  be  a 
transfer  of  the  absolute  title  or  general  property,  to  con- 
stitute a  sale  of  personal  property,  distinguishes  that 
contract  from  a  bailment,  in  which  there  is,  at  most,  a 
transfer  of  the  special  property.8 

1  Creveling  v.  Wood,  95  Pa.  St.  152, 158  ;  Story  on  Sales,  \  1  ;  Win- 
field's  Words,  etc.  547. 

2  Se«  Edwards  v.  Farmers'  Ins.  Co.  21  Wend.  404.    Effect  of  sale 
under  Roman,  civil,  and  French  law:  Benjamin  on  Sales,  \\  401,  412  ; 
2  Schouler  on  Personal  Property,  £  237.    Under  Scotch  law  :  McBaiu 
v.  Wallace,  6  App.  Cas.  608. 


3  See  definitions  of  sale  in  \  1. 

4  State  v.  Wentworth,  35  X.  TT.  442, 443.    In  every  sale  there  is  a 
transfer  or  change  of  title  from  the  vendor  to  the  vendee,  though 
there  may  be  a  transfer  or  change  of  title  without  a  sale  :   Western, 
Mass.  Ins.  Co.  v.  Riker,  10  Mich.  279,  281. 

5  See  Newcomb  v.  Cabell,  10  Bush,  460, 468.    A  common-law  sale 
Is  strictly  a  transaction  operating  as  a  present  transfer  of  ownership, 
and  does  not  include  executory  contracts  for  the  future  sale  and  de- 
livery of  personal  property  :  Cunningham  v.  Ashbrook,  20  Mo.  553, 
557. 

6  See  Morse  v.  Sherman,  106  Mass.  430,  434  ;  Reed  v.  Upton,  10 
Pick.  522,  524,  525. 

7  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291, 295.    And  see  Rid- 
dle v.  Varnum,  20  Pick.  280,  283. 

8  See  Cobb  v.  Tufts,  2  Tex.  Cond.  Rep.  (Civ.  Gas.)  §  152. 

g  6.  Classification  of  sales. —  Varying  with  point  of 
view.  Sales  may  be  variously  classified,  according  to 
the  aspect  from  which  the  transfer  is  regarded.1 

Voluntary  and  forced.  Thus,  a  voluntary  sale  is  one 
made  freely  without  constraint  by  the  owner  of  the 
thing  sold.2  A  forced  or  involuntary  sale  is  one  made 
without  the  consent  of  the  owner  of  the  property,3  by 
some  officer  appointed  by  law,  as  by  a  marshal  or 
heriff,  in  obedience  to  the  mandate  of  a  competent 
ribunal.4  This  kind  of  a  sale  is  sometimes  called  a 
udicial  sale  ; 5  and  the  term  may  be  extended  to  sales 

T  executors  or  administrators,  guardians  and  trustees.6 

Private  and  public.    A  private  sale  is  one  made  volun- 

rily,  and  not  by  auction.7  A  public  sale  is  one  made 
auction  to  the  highest  bidder.8 

Executory  and  executed.  There  are  executed  or  com- 
plete sales,  whereby  the  property  to  the  thing  sold 
becomes  vested  in  the  buyer ; 9  and  there  are  executory 
sales,  or  rather  sales  resting  in  executory  agreement,  in 
which  the  property  has  not  yet  passed  from  the  seller, 
because  something  yet  remains  to  be  done  to  complete 
the  sale.10 

Oral  and  written.  Furthermore,  sales  may  be  oral  or 
written  (at  least  in  outline),  the  latter  being  alone  valid 


§  6  NATURE.  8 

or  enforcible,  by  reason  of  the  widely  adopted  statute 
of  frauds,11  for  goods  exceeding  a  prescribed  value,  in 
the  absence  of  various  acts  of  compliance  deemed  equiv- 
alent to  written  evidence  of  the  contract.12 

Other  divisions.  So  sales  may  be  absolute,  as  where 
they  are  free  from  any  qualification  in  their  creation 
and  completion,  or  conditional,13  because  depending  foi 
their  validity  on  the  fulfillment  of  a  contingency  01 
condition ; u  they  may  be  legal,  as  conforming  to  the 
law,  or  illegal,  as  in  contravention  of  good  morals,  public 
policy,  or  statutory  enactments  ; 15  they  may  be  valid,  as 
free  from  fraud,  or  impeachable  for  deception,  conceal- 
ment, or  misrepresentation ; 16  and  the3r  may  be  with 
warranty,  where  the  quality  or  title  of  the  goods  is 
guaranteed,  or  t*hey  may  lack  such  collateral  stipula- 
tion.17 Further  divisions  of  contracts  of  sale,  frequently 
noted,  are  into  express  and  implied,  the  consent  in  the 
latter  case  being  derived  from  acts  and  conduct  rather 
than  words  ;18  and  into  entire  or  indivisible  and  sever- 
able  contracts,  as  in  the  case  of  instalment  sales.19 

1  2  Schouler  on  Personal  Property,  \  202. 

2  2  Ronvi^r  Law  Diet.  tit.  Sale  (15th  ed.)  GOfi.    This  is  the  common 
Case  of  sales,  and  to  this  class  the  general  rules  of  the  law  of  sales 
apply  :  2Bouvier  Law  Diet,  tit.  Sale  (loth  ed.)  606. 

3  S^e  Peterson  r.  Hornblower,  33  Cal.  2P6,  276  ;  Patterson  ?'.  Tay- 
lor, 15  Fla.  336,  341.    But  compare  Lanahaii  v.  Sears,  102  U.  S.  318. 

4  2  Bonvier  Law  Diet.  tit.  Sale  (15th  ed.)  606.    This  sale  has  the 
effort  to  transfer  all  the  rights  the  owner  has  in  the  property,  but  it 
dors  not,  like  a  voluntary  sale,  guarantee  a  title  to  the  thing  sold:  2 
Bouvier  Law  Diet.  tit.  Sale  (15th  ed.)  606. 

5  Definitions  of  judicial  sale:  Sturdevant  v.  Norris,  30  Iowa,  71  ; 
Williamson    r.  I>rry,  8  How.  547 ;  Winfield's  Words,  etc.  342.    See 
Lawsoii  v.  De  Bolt,  78  Ind.  563,  564  ;  1  Abbott's  Law  Diet.  669. 

6  2  Schouler  on  Personal  Property,  ?  203.    As  forced  sales  may 
cover  not  only  sales  on  execution,  in  bankruptcy,  etc.,  but  perhaps 
also  sales  by  creditors  in  their  own  behalf,  as  in  the  instance  of  a 
mortgagee  with  a  power  of  sale:  2  Schouler  on  Personal  Property, 

7  2  BOUT.  Law  Diet.  tit.  Sale  (15th  ed.)  606. 

8  2  Bonv.  Law  Diet.  tit.  Sale  (15th  ed.)  606.    Auction  sales  some- 
times are  voluntary,  as  when  the  owner  chooses  to  sell  his  goods  ia 
this  way,  and  then  as  between  the  seller  and  the  buyer  the  usual 


NATURE. 


6 


rules  relating  to  sales  apply  ;  or  they  are  Involuntary  or  forced, 
when  the  same  rules  do  not  apply :  2  Bouvier  Law  Diet.  tit.  Sale 
(15th  ed.)  606. 

9  2  Schouler  on  Personal  Property.  §  202.  And  see  2  Abbott's  Law 
Diet.  441.  A  sale  is  also  sometimes  said  to  be  executed  when  the 
contract  is  performed  by  the  delivery  of  the  thing  and  the  payment 
of  the  price :  See  Story  on  Sales.  §  231. 

10  2  Schouler  on  Personal  Property,  ?  203.    And  see  2  Abbott's  Law 
Diet.  441 ;  Reed  v.  Upton,  10  Pick.  522,  524.    A  sale  is  also  said  to  be 
executory  on  one  side  when  something  remains  to  be  done,  not  in 
the  creation  but  in  the  performance  of  the  contract,  as  delivery  or 
payment:  See  Story  on  Sales,  §  236. 

11  29  Car.  ii  ch.  3.    See  title  in  Bouvier  Law  Diet.  (14th  ed.)  614. 

12  See  chapters  relating  to  STATUTE  OF  FRAUDS.    Although  at 
common  law  consent  alone  was  sufficient  to  constitute  a  valid  sale, 
the  statute  of  frauds  has  now  intervened,  and  other  formalities  are 
prescribed  to  make  the  transfer  valid  :  Cunningham  v.  Ashbrook,  20 
Mo.  553,  558. 

13  See  1  Abbott's  Law  Diet.  ?62. 

14  2  Bouvier  Law  Diet.  tit.  Sale  (15th  ed.)  606.     See  Copland  v. 
Bosquet,  4  Wash.  C.  C.  588,  592  ;  Bigelow  v.  Huntley,  8  Vt.  151,  154  ;  2 
Schouler  on  Personal  Property,  #  202  ;  Story  on  Sales,  \  246. 

15  See  chapter  on  ILLEGAL  SALES. 

16  See  chapter  on  FRAUDULENT  SALES. 

17  See  chapter  on  WARRANTY. 

18  See  Story  on  Sales,  §  229. 

19  See  Story  on  Sales,  \  240.    So  a  sale  may  be  for  cash  or  on  credit 
according  as  pavment  of  the  price  is  to  be  immediately  made  or 
postponed  to  a  future  time :  See  Anstedt  v.  Sutter,  30  111.  1(54,  166 ; 
Turner  v.  Moore,  58  Vt.  455,  456,  3  Atl.  Rep.  407.    And  there  may  be 
sales  of  specific  things  where  the  chattels  are  at  once  identified  and 
appropriated  to  the  contract,  and  sales  of  things  not  specific,  or  a 
sort  of  contract  for  the  supply  of  chattels  answering  a  particular 
description,  but  not  yet  identified  and  appropriated:  28ch.ouler  on 
^ersonal  Property,  g  202. 


§   7  SIMILAR  TRANSACTIONS.  10 


CHAPTER  II. 

SIMILAR  TRANSACTIONS. 

§    7.  Sale  or  assignment. 

?    8.  Sale  or  preliminary  negotiation. 

§    9.  Sale  or  executory  agreement. 

g  10.  Sale  or  gift 

2  11.  Sale  or  exchange. 

§  12.  Difference  in  remedies. 

\  13.  Sale  of  liquor  by  club. 

\  14.  Sale  or  bailment. 

\  15.  Arrangements  with  millers. 

§  16.  Deposits  in  grain  elevators. 

2  17.  Delivery  for  resale. 

g  18.  Delivery  to  manufacturer. 

?  19.  Delivery  under  conditional  sales. 

\  20.  Privilege  of  purchase. 

2  21.  Privilege  of  return. 

\  22.  Sale  or  lease. 

\  23.  Sale  or  pledge. 

§  24.  Sale  or  mortgage. 

\  2").  Sale  or  consignment. 

§  26.  Remedies  in  such  transactions. 

§  27.  Sale  or  payment. 

\  28.  Further  distinctions. 

§  7,  Sale  or  assignment. —  Transfer  of  any  kind  of 
property  or  interest.  The  idea  of  an  assignment  is 
essentially  that  of  a  transfer  by  one  existing  party  to 
another  of  some  species  of  property  or  valuable  interest.1 
In  common  parlance  this  word  signifies  the  transfer  of 
all  kinds  of  property,  real,  personal,  and  mixed,  and 
whether  the  same  be  in  possession  or  in  action,  as  a 
general  assignment.2 

Transfer  of  interest  in  land.  In  a  more  technical 
sense,  it  is  usually  applied  to  the  transfer  of  a  term  of 
years,  though  it  is  more  comprehensively  used  to  signify 
a  transfer  of  some  particular  estate  or  interest  in  land.3 


11  SIMILAR  TRANSACTIONS.  §   8 

Transfer  of  goods  and  chattels.  And  where  an  article 
of  merchandise  or  a  personal  chattel  is  the  subject 
of  assignment,  the  act  is  more  commonly  termed  a 
sale.4 

transfer  of  chose  in  action,  etc.  But  in  a  narrower 
sense,  and  in  regard  particularly  to  other  property  than 
real  estate,  the  term  "assignment"  is  often  confined  in 
its  application  to  a  transfer  of  a  chose  in  action  or  other 
species  of  incorporeal  personal  property.5 

Sale  or  assignment  for  benefit  of  creditors.  The  general 
difference  between  a  sale  and  an  assignment  for  the 
benefit  of  creditors  is  stated  to  be,  that  in  the  former 
here  is  a  fixed  price,  while  in  the  latter  there  is  a 
aere  trust,  and  of  course  no  fixed  value  given  to  the 
property.6 

1  Right  ?'.  Sackett,  34  N.  Y.  451;  Winfield's  Words,  etc.  50;  1  Ab- 
bott's Law  Diet.  96. 

2  Ball  v.  Chadwick,  46  111.  31.    Common-law  definition  :  Cowles  v. 
Ricketts,  1   Iowa,  582,  585;    1  Bacon's  Abridgment,  329;    Chase  v. 
"Walters,  28  Iowa,  460,  464.    And  see  Perrins  v.  Little,  1  Green,  248  ; 

'otter  v.  Holland,  4  Blatchf.  210. 

3  Ball  v.  Chadwick,  46  111.  31 ;  Winfield's  Words,  etc.  50. 

4  Burrill  on  Assignments,  g  1.    And  see  2  Steph.  Com.  (9th  ed.)  45 ; 
,'arter  v.  Jarvis,  9  Johns.  143.    An  assignment  of  goods  at  sea,  and 
heir  proceeds,  is  sufficient  to  pass  a  legal  title  to  the  proceeds: 
lodges  v.  Harris,  6  Pick.  360. 

5  See  Schouler  on  Personal  Property,  \\  72-83  ;  Burrill  on  Assign- 
nents,  ?  4.    Consult,  also,  Bump  v.  Van  Orsdale,  11  Barb.  634.    An 
greement  to  assign  an  insurance  policy  has  been  held  not  a  contract 
f  insurance,  but  of  sale  :  Dodd  v.  Jones,  137  Mass.  322. 

6  Keiler  v.  Tutt,  31  Mo.  301,  306.    Further  points  of  distinction: 
'urrili  on  Assignments,  \  4. 

8.    Sale  or  preliminary  negotiation.  — Distinction  made. 
L  sale  is  to  be  distinguished  from  a  negotiation  prelimi- 
ary  to  a  contract,1  as  a  mere  proposition  or  offer  to  sell,2 
or  a  verbal  promise  to  trade  when  the  parties  should 
neet,  and  then  either  to  sell  or  buy.3 

Ground  of  distinction.    For  there  may  be  propositions 
vhicli,  when  accepted  or  complied  with,  will  ripen  into 
e,  or  there  may  be  agreements  for  a  sale  in  the 


§  9  SIMILAR  TRANSACTIONS.  12 

future ; 4  but  these  do  not  confer  the  rights  or  impose 
the  obligations  which  arise  from  a  contract  of  sale.5 

1  See  Whitmore  v.  Alley,  46  Me.  428,  431. 

2  Smith  v.  Weaver,  90  111.  392,  393.    Offer :  See  chapter  on  CON- 
SEXT. 

3  Whitmore  v.  Alley,  46  Me.  428,  431.    Such  a  transaction  does  not 
amount  to  an  executory  contract :  Whitmore  v.  Alley,  46  Me.  423,  431. 

4  Or  executory  contracts  of  sale :  See  g  9,  on  SALE  OR  EXECUTORY 
AGREEMENT. 

5  Leigh  r.  Mobile  etc.  R.  R.  Co.  58  Ala.  165,  174.    Citing  Parsons 
on  Mercantile  Law,  41 ;  Chamberlin  v.  Smith,  44  Pa.  St.  431. 

§  9.  Sale  or  executory  agreement,  —  Agreement  to  sell 
and  buy,  etc.  In  the  phraseology  of  statutory  enact- 
ments in  some  of  the  States,1  an  agreement  to  sell  and 
buy  is  a  contract  by  which  one  engages  to  transfer  the 
title  to  a  certain  thing  to  another,  who  engages  to  accept 
the  sum  from  him,  and  to  pay  a  price  therefor.2 

Present  or  postponed  transfer  of  title.  And  in  general, 
the  distinction  between  a  present  sale,3  called  a  "  bar- 
gain and  sale,"  at  common  law,4  and  a  mere  engage- 
ment for  a  future  sale,5  or  executory  agreement,6  is  that 
in  the  former  the  title  passes,  and  the  sale  is  absolute 
and  complete,7  while  in  the  latter  the  title  does  not 
pass,8  except  on  the  performance  of  a  precedent  or 
concurrent  condition,9  or  so  long  as  something  remains 
to  be  done  in  the  way  of  specifically  appropriating  the 
goods  sold  to  the  contract.10 

Difference  in  buyers  remedies.  The  proposed  buyer 
in  the  case  of  an  executory  agreement  has  a  right  to 
have  the  ownership  of  the  thing  contracted  to  be  sold, 
but  if  that  be  wrongfully  denied  to  him,  he  has  his 
remedy  only  in  damages.11  But  in  an  executed  sale  the 
buyer,  though  the  goods  are  not  yet  delivered  to  him, 
takes  all  the  responsibilities  of  ownership,  and  in  case 
of  destruction  by  fire  or  other  casualty,  the  loss  falls 
on  him.12 


13  SIMILAR  TRANSACTIONS.  g   10 

1  Stlms.  Am.  Stat.  Law,  §  4561,  p.  541. 

2  Cal.  Civ.  Code,  §  1729 ;  Dak.  Civ.  Code,  ?  986.    Agreement  to  sell 
defined  :  Cal.  Civ.  Code,  \  1727  ;  Dak.  Civ.  Code,  §  984.    Promise  to  sell 
In  Louisiana:   Knox  v.  Payne,  13  La.  An.  361,  .'{62.    Agreement  to  buy 
defined  :  Cal.  Civ.  Code,  g  1728  ;  Dak.  Civ.  Code,  §  985. 

3  See  Martin  v.  Adams,  104  Mass.  262. 

4  See  McCrae  v.  Young,  43  Ala.  622,  625. 

5  See  Lounsdale  v.  Hunsaker,  2  Or.  101, 103. 

6  See  Cunningham  v.  Ashbrook,  20  Mo.  553,  557. 

7  See  Newcomb  v.  Cabell,  10  Bush,  460,  468. 

8  The  former  passes  the  title  in  the  subject  of  the  sale  in  the  pur- 
chaser, while  the  latter  gives  no  title,  but  simply  creates  a  right : 
Ponieroy's  Article,  4  Johns.  Cycl.  1647. 

0  See  Morse  v.  Sherman,  106  Mass.  430,  434 ;  Shields  v.  Pettee,  4 
N.  Y.  122, 124.    And  compare  Knox  v.  Payne,  13  La.  An.  361,  362. 

10  See  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  201,  205  ;  Cunning- 
ham v.  Ashbrook,  20  Mo.  553,  556  ;  also  Riddle  v.  Varnum,  20  Pick.  280, 
28:>.    Distinction  illustrated:  Low  v.  Andrews,  1  Story,  38,  42.     The 
thing  sold  must  be  specific  or  identified,  and  capable  of  delivery, 
otherwise  the  transaction  is  not  strictly  a  contract  of  sale,  but  a  spe- 
cial or  executory  agreement :  2  Kent  Com.  468. 

11  Pomeroy's  Article,  4  Johns.  Oycl.  1647.    The  same  rule  is  appli- 
cable to  the  proposed  seller  should  the  expectant  buyer  refuse,  with- 
out cause,  to  take  the  article  at  the  stipulated  time  :   Pomeroy's 
Article,  4  Johns.  Cycl.  1647.    See  chapter  on  EXECUTORY  SA.LKS. 

12  Pomeroy's  Article,  4  Johns.   Cycl.  1647.    While  in  the  execu- 
tory contract"  an  ownership  remains  in  the  seller,  he  must  bear  all 
such  losses  :  Pomeroy's  Article,  4  Johns.  Cycl.  1647.    See  chapter  on 
EXECUTORY  SALKS. 

\  10.  Sale  or  gift.  —  General  difference.  A  gift,  as 
generally  defined,  differs  from  a  sale  in  being  a  volun- 
tary transfer  without  consideration.1 

Delivery  and  acceptance  of  gift.  Speaking  compre- 
hensively, it  requires  for  its  completion,  delivery  and 
acceptance,  or  legally  equivalent  acts.2 

Agreement  to  pay.  To  make  the  delivery  of  goods  a 
sale,  however,  there  must  be  an  agreement  to  pay,  as 
otherwise  it  is  a  mere  gratuity.3  But  an  onerous  gift  is, 
when  accepted,  in  the  nature  of  a  sale,  if  the  burden  it 
imposes  is  the  payment  of  a  sum  of  money.4 

1  See  Gray  v.  Burton,  55  N.  Y.  68,  72  ;  Cal.  Civ.  Code,  ?  1146  ;  Dak. 
Civ.  Code,  \  639.     A  gift  differs  from  a  contract  in  not  being  based 
upon  a  consideration,  which  is  essential  to  give  a  contract  validity  : 
Art.  Gift,  2  Johns.  Cycl.  547.    A  gift  actually  conferred  is,  in  effect,  an 
executed  contract,  while  one  merely  promised  is  an  invalid  execu- 
tory contract :  Art.  Gift,  2  Johns.  Cycl.  547.    See  2  Schouler  on  Per- 
sonal Property,  U  56,  57. 

NEWMABK  SALES.  —  2. 


§   11  SIMILAR  TRANSACTIONS.  14 

2  See  Stims.  Am.  Stat.  Law,  2  4500  ;  Chadsey  v.  Lewis,  1  Gilm. 
153, 155. 

3  Commonw.  v.  Packard,  5  Gray,  101, 103. 

4  Bouvier  Law  Diet.  tit.  Sale  (15th  ed.)  606. 

g  11.  Sale  or  exchange.  —  Exchange  and  barter  defined. 
Generally  speaking,  exchange  is  a  contract  by  which  the 
parties  give  one  thing  for  another,  whatever  it  be, 
except  money.1  And  barter  is  said  to  be  that  species 
of  contract  in  which  merchandise  is  exchanged  for 
merchandise.2 

Difference  in  mode  of  payment  of  consideration.  A 
sale  is  declared  to  differ  from  a  barter  in  this,  that 
in  the  latter  the  consideration,  instead  of  being  paid  in 
money,  is  paid  in  goods  or  merchandise  susceptible  of  a 
valuation.3  So  the  essential  difference  between  a  sale 
and  an  exchange  is  said  to  be  this,  that  in  the  former 
the  price  is  paid  in  money,  whilst  in  the  latter  it  is  paid 
in  goods  by  way  of  barter.4  And  where  goods  have 
been  delivered  by  one  party,  and  the  other  party  agrees 
to  deliver  other  goods  of  a  similar  quality,  on  demand, 
the  transaction  is  held  not  a  sale  of  the  goods,  but  an 
agreement  for  an  exchange.5 

Fixed  price  as  criterion.  A  more  accurate  perception 
of  the  distinction  between  a  sale  and  an  exchange  is 
shown,  however,  by  the  declaration  that  an  agreed 
price  is  essential  to  a  proper  bargain  and  sale,  but  alto- 
gether needless  in  the  case  of  an  exchange ; 6  and  when 
one  piece  of  property  is  given  for  another  without  re- 
gard to  value,  that  is  an  exchange.7  But  if  property  is 
taken  at  a  fixed  money  price,  the  transfer  amounts  to 
a  sale,  whether  the  price  is  paid  in  cash  or  in  goods.8 

Estimation  by  money  standard.  For  it  is  immaterial 
whether  there  be  a  money  payment  or  not,  provided 
the  bargain  be  made  and  the  value  be  measured  in 
money  terms.9 


15  SIMILAR  TRANSACTIONS.  g  11 

Goods  to  be  paid  for  in  goods  at  certain  price.  And 
•where  one  parly  sold  and  delivered  to  another  dry 
goods,  which  the  latter  agreed  to  pay  for  in  nails  at 
a  certain  price,  to  be  delivered  on  or  before  a  future  day 
specified,  this  was  held  a  purchase  of  dry  goods  on 
credit,  to  be  thereafter  paid  for  in  nails  at  a  fixed  price, 
and  not  a  purchase  of  nails  to  be  paid  for  in  dry  goods, 
nor  even  an  exchange  of  dry  goods  for  nails.10 

Money  as  part  of  consideration.  So,  when  a  thing  has 
been  exchanged  for  another  thing  and  a  sum  of  money, 
the  contract  is  often  regarded  as  a  sale  to  the  extent  of  the 
money  consideration.11  Thus,  it  is  declared  that  when 
property  is  transferred  at  a  fixed  price  agreed  upon,  and 
money  and  other  property  received  in  payment,  the 
transaction  will,  in  the  absence  of  express  evidence  that 
an  exchange  only  wras  intended,  be  deemed  a  sale  rather 
than  an  exchange.12  But  a  transaction  is  not  a  sale 
whereby  the  owner  of  a  number  of  objects  transfers 
them  to  another  in  consideration  of  the  same  number 
of  like  objects  and  a  specified  sum  in  money,  where  no 
price  is  attached,  and  no  value  measured  in  money 
terms.13 

1  See  La.  Civ.  Code,  art.  2660.     And  compare  Cal.  Civ.  Code, 
?  1807  ;  Dakota  Civ.  Code,  §  1029.    Mutual  grant  of  equal  interests: 
2  Blackst.  Com.  323 ;  Wilcox  v.  Randall,  7  Barb.  C33,  038.    Preceded, 
buying,  etc.  :  Anon,  3  Salk.  157. 

2  1  Abbott's  Law  Diet.  457. 

3  Com mon w.  v.  Davis,  12  Bush,  240,  241.    A.  barter  is  said  to  be 
always  of  goods  for  goods,  while  a  sale  is  of  goods  for  money,  or  for 
money  and  goods  :   1  Bouvier  Law  Diet.  (14th  ed.)  191.    Sale  or  barter 
of  liquor  for  pool-checks:  Massey  v.  The  State,  74  Ind.  368.    And 
compare  Stevenson  v.  The  State,  65  Ind.  40n.    Of  intoxicating  liquor, 
election  concerning  :  Ex  parte  Beaty,  1  S.  W.  Rep.  (Tex.)  451. 

4  Commonw.  v.  Clark,  14  Gray,  367,  372.    And  see  Mitchell  v,  GUe, 
12  X.  H.  3S)0.  895  ;  2  Blackst.  Com.  446. 

5  Mitchell  v.  Gile,  12  N.  H.  390,  395. 

6  Loomis  v.  Wainwright,  21  Vt.  520. 

7  Picard  v.  McCormick,  11  Mich.  68,  70. 

8  Picard  ?>.  McCormick,  11  Mich.  68,  70.    In  a  sale  there  is  a  fixed 
price,  while  in  a  barter  there  is  not :  1  Bouvier  Law  Diet.  (Hth  ed.)  IU1, 

9  Gunter  v.  Lecky,  30  Ala.  591,  596. 


§§  12-13  SIMILAR  TRANSACTIONS.  16 

10  Herrick  v.  Carter,  56  Barb.  41,  44,  45. 

11  See  Furniss'  Succession,  34  La.  An.  1013;  Porsyth  v.  Jervls,  1 
Stark.  437,  439 ;  Sheldon  v.  Cox,  3  Barn.  &  C.  420 ;  Hands  v.  Burton,  9 
East,  349,  350. 

12  Loomis  v.  Wainwright,  21  Vt.  520. 

13  Gunter  v.  Lecky,  30  Ala.  591,  597. 

§  12.  Difference  in  remedies.  —  Averment  of  "sale"  for 
"  exchange."  Strictly  speaking,  an  averment  of  a  con- 
tract of  "sale"  is  not  supported  by  proof  of  an  "ex- 
change."1 

Common  counts  or  special  agreement.  And  there  is 
this  difference  between  the  remedies  for  the  breach  of 
a  contract  of  sale  and  one  of  exchange,  that  in  the 
latter  case,  as  generally  held,  the  declaration  cannot  be 
framed  under  the  common  counts  for  goods  sold  and 
delivered,  but  must  be  based  on  the  special  agreement.2 

Equivalent  other  than  money.  So  in  general,  where 
goods  are  sold  to  be  paid  for  wholly  or  in  part  by 
goods,  or  by  the  other  party's  labor,  or  otherwise  than  in 
money,  the  action  must  be  for  a  breach  of  the  agree- 
ment, and  not  for  goods  sold  and  delivered.3 

1  Vail  v.  Strong,  10  Vt.  457,  465. 

2  See  Mitchell  v.  Gile,  12  X.  H.  390,  391 ;  Harrison  ?•.  Luke,  14  Meea. 
&  W.  139,  Ml  ;  Reed  r.  Hutchinson,  3  Camp.  352,  353.    But  compare 
contra,  Way  ?>.  Wakefleld.  7  Vt.  223;  Wainwright  v.  Straw,  15  Vt,  215, 
219 ;  Kent  v.  Bowker,  38  Vt.  148,  150, 152. 

3  Mitchell  v.  Gile,  12  N.  H.  390,  392.    And  compare  Keys  r.  Har- 
wood,  2  Com.  B.  905,  907.    But  see  Clark  v.  Fairfield,  22  Wend.  522 ; 
Kent  v.  Bowker,  38  Vt.  148, 150. 

$  13.  Sale  of  liquor  by  club,  —  For  consumption  off  the 
premises,  etc.  The  sale  of  liquor  by  a  club  to  its  mem- 
bers1 through  a  manager  for  consumption  off  the  prem- 
ises, and  at  a  profit  turned  into  the  common  fund,  is 
a  transfer  of  property,  but  not  a  sale  within  the  mean- 
ing of  a  statute  prohibiting  any  person  from  selling 
intoxicating  liquors  by  retail  without  a  license.2 

Payment  in  checks,  etc.  Nor  is  there  necessarily  and 
as  a  matter  of  law  an  indictable  sale  of  intoxicating 


17  SIMILAR  TRANSACTIONS.  §  14 

liquors  by  the  agent  of  a  club  to  its  members,  irre- 
spective of  the  consideration  whether  the  arrangement 
was  colorable,  and  an  evasion  of  the  statute,  where 
payment  was  made  in  five-cent  checks,  and  the  surplus 
liquor  was  the  agent's  recompense.3 

Counter  views.  But  on  the  other  hand,  it  is  declared 
that  since  a  man  even  at  common  law  may  sell  to  him- 
self and  another,  every  element  of  a  sale  is  present  in 
the  transaction,  where  the  members  of  a  club  were 
with  others  permitted  to  take  beer  at  its  rooms  on  pre- 
senting a  five-cent  check  for  each  glass.4 

1  See  Commonw.  v.  Pomphret,  137  Mass.  504  ;  50  Am.  Hep.  340. 
Subject  discussed  :  32  Am.  Hep.  433  ;  22  Am.  Law  Keg.  102. 

2  Graff  v.  Evans,  L.  R.  8  Q.  B.  D.  373  ;  S.  C.  22  Am.  Law  Reg.  99. 

3  Commonw.  v.  Smith,  102  Mass.   144.    And  see  Commonw.  v. 
Pomphret,  137  Mass.  564  ;  50  Am.  Rep.  340  ;  Seim  v.  State,  55  Md.  56G  ; 
39  Am.  Rep.  419. 

4  U.  S.  v.  Wittig,  2  Low.  466.    And  see  Marmont  v.  State,  48  Ind. 
21 ;  Rickart  v.  People,  79  111.  85  ;  State  v.  Mercer,  32  Iowa,  40.». 

§  14.  Sale  or  bailment.  —  Transfer  of  special  property. 
A  transfer  only  of  the  special  property  and  not  of  the 
general  or  absolute  title  is  not  a  sale  of  the  thing,1 
though  it  may  be  a  bailment.2 

Restoration  of  identical  or  of  equivalent  thing.  A 
recognized  distinction  between  bailment  and  sale  has 
been  stated  to  be,  that  when  the  identical  thing  deliv- 
ered is  to  be  restored,  though  in  an  altered  form,  the 
contract  is  one  of  bailment,  and  the  title  to  the  property 
is  not  changed.3  But  when  there  is  no  obligation  to 
restore  the  specific  article,  and  the  receiver  is  at  liberty 
to  return  another  thing  of  equal  value,  he  becomes  a 
debtor  to  make  the  return,  the  title  to  the  property  is 
changed,  and  the  transaction  is  a  sale.4 

Applications  of  distinction.  And  this  distinction  has 
been  applied,  so  as  to  make  out  a  sale,  to  a  warehouse- 
man's receipt  for  grain  in  store,  with  an  agreement  at  a 


§   15  SIMILAR  TRANSACTIONS.  18 

stipulated  price,5  and  to  a  delivery  of  animals  to  be  re- 
turned at  a  specified  date  "  as  good  and  in  as  good  con- 
dition and  age  as  when  taken."  6 

Delivery  to  agents,  etc.,  and  where  title  reserved.  But 
the  principle  that  a  delivery  of  goods  to  one  to  be  re- 
turned, or  something  else  in  their  stead,  at  the  option 
of  the  receiver,  constitutes  a  sale,  does  not  apply  to 
an  entrustment  to  agents  and  factors.7  And  the  party 
receiving  the  property  is  a  mere  bailee,  when  by  a 
writing  given  by  him  at  the  time,  he  admits  that  the  title 
is  in  the  party  delivering  it,  and  agrees  that  it  shall  so 
continue  till  the  price  is  fully  paid,  and  meanwhile  to 
use  the  property  in  a  particular  way.8 

1  Cobb  ?>.  Tufts,  2  Tex.  Cond.  Kep.  (Civ.   Cas.)  ?  152.    And  see 
Woods  v.  Half,  44  Tex.  633,  635. 

2  See  Boston  etc.  R.  K.  Co.  v.  Warrior  Mower  Co.  73  Me.  251,  230 ; 
Belden  v.  Perkins.  78  111.  449,  454  ;  Whitaker  v.  Sunnier,  20  Pick.  399, 

405. 

3  Mallory  v.  Willis,  4  N.  Y.  76, 85.    And  see  other  cases  next  cited. 

4  Mallory  v.  Willis,  4  N.  Y.  76, 85  ;  Foster  v.  Pettihone.  7  N.  Y.  433  ; 
57  Am.  Dec.  531.    And  see  Lonergan  v.  Stewart,  55  III.  45, 49  ;  2  Kent 
Com.  589,  590;  South  Australian  Ins.  Co.  v.  Randall,  Law  R.  3  P.  C. 
101, 109, 113  ;  Chase  v.  Washburn,  1  Ohio  St.  244,  2-1') ;  53  Am.  Dec.  623  ; 
Grier  v.  Stout,  2  111.  App.  G02,  606  ;  Moore  v.  Holland,  33  Me.  307. 

5  Grier  v.  Stout,  2  111.  App.  602,  6C8. 

6  Reed  v.  Abbey,  2  Thomp.  &  C.  380.    And  compare  Bartlett  v. 
Wheeler,  44  Barb.  162, 1G3  ;  Grant  v.  Williams,  6  Jred.  3-11,  342. 

7  Blood  t».  Palmer,  11  Me.  414, 420  ;  26  Am.  Dec.  5-17,  550. 

8  Crocker  v.  Gullifer,  44  Me.  491,  492,  404. 

\  15.  Arrangements  with  millers.  —  Return  of  specified 
proportions  of  flour,  etc.  The  transaction  has  usually 
been  held  a  sale  and  not  a  bailment,  where  wheat  is 
sent  to  a  miller  upon  a  contract  not  to  return  the  iden- 
tical wheat  or  keep  it  separate  from  other  wheat,  but 
that  the  sender  may  have  as  much  flour  as  it  would 
make,  or  a  specified  proportion  of  flour  for  each  bushel 
of  wheat,  or  under  some  similar  arrangement.1 

Corn  to  be  used  as  part  of  current  consumable  stock, 
etc.  So  the  transaction  has  been  considered  a  sale  and 


19  SIMILAR  TRANSACTIONS.  §   16 

not  a  bailment,  where  corn  was  deposited  by  farmers 
with  a  miller,  to  be  stored  and  used  as  part  of  the 
current  consumable  stock  or  capital  of  the  miller's 
trade,  subject  to  the  right  to  claim  at  any  time  an 
equal  quantity  of  corn  of  like  quality,  or  the  market 
price  therefor,  less  charges,  on  the  day  of  demand.2 

No  right  reserved  to  return  or  recall,  etc.  And  an  ar- 
rangement with  a  miller  to  deliver  wheat  to  him,  to  be 
paid  for  on  delivery,  or  at  any  subsequent  time  when 
payment  shall  be  demanded,  and  with  an  understand- 
ing that  the  miller  may  use  it  in  his  milling  business, 
is  a  sale  absolute,  if  no  right  is  reserved  to  recall  or 
return  it.3 

When  mere  bailment.  But  it  has  been  held  that  a 
contract,  whether  verbal  or  written,  between  parties 
depositing  wheat,  and  a  miller  and  warehouseman 
agreeing  to  store  it  until  a  certain  date,  is  not  a  mutuum 
or  exchange,  nor  a  sale  of  the  wheat,  but  a  bailment, 
pure  and  simple,  when  it  was  stipulated  that  the  wheat 
might  be  sold  at  pleasure  before  that  date,  or  that  wheat 
would  be  returned  if  called  for.4 

1  See  Carlisle  ?;.  Wallace,  10  Ind.  252,  253  ;  Smith  v.  Clark,  21 
Wend.  83  ;  34  Am.  Dec.  213,  214,  215 ;  Norton  v.  Woodruff,  2  N.  Y.  153, 
156 ;  Tilt  v.  Silverthorne,  11   Up.  Can.  Q.  B.  619,  620.    But  compare 
Seymour  v.  Brown,  19  Johns.  44  ;  Slaughter  r.  Green,  1  Rand.  3  ;  10 
Am.  Dec.  488  ;  Foster  v.  Pettibone,  7  N.  Y.  433  ;  57  Am.  Dec.  530,  531  ; 
Mallory  v,  Willis,  4  N.  Y.  76,  70 ;  Inglebright  v.  Hammond,  19  Ohio, 
337 ;  53  Am.  Dec.  430  ;  Chase  v.  Washburn.  1  Ohio  St.  244,  251 ;  59  Am. 
Dec.  623 ;  Stephenson  v.  Ranney,  2  Up.  Can.  C.  P.  196. 

2  South  Australian  Ins.  Co.  v.  Randell,  Law  R.  3  P.  C.  101,107; 
Fully  noted :  Rahilly  v.  Wilson,  3  Dill.  420,  427.    But  compare  Isaac 
v.  Andrews,  28  Up.  Can.  C.  P.  40,  43.    And  see  Benedict  v.  Ker,  29  Up. 
Can.  C.  P.  410,  412. 

3  Jones  v.  Kemp,  49  Mich.  9, 10. 

4  Schindler  v.  Westover,  99  Ind.  395,  400.    Distinguished,  Lyon  n 
Lenon,  7  N.  E.  Rep.  (Ind.)  311.    Compare  Andrews  v.  Richmond,  34 


Hun,  20.  Storage  receipts:  Ivesr.  Hartley,  51  111.  520,  523.  And  s< 
Benedict  v.  Ker,  29  Up.  Can.  C.  P.  410,  412.  But  compare  Dean 
Lammers,  63  Wis.  331,  336 ;  Bailey  v.  Bensley,  87  111.  556,  560. 


16.    Deposits  in  grain  elevators.  —  Conflicting  lines  of 
es.    The  rule  followed  by  one  line  of  cases  with  re- 


§  16  SIMILAR  TRANSACTIONS.  20 

gard  to  deposits  in  warehouses  and  grain  elevators,  or 
similar  receptacles,  is  that  the  dominion  over  the  prop- 
erty passes  to  the  depositary,  and  the  transaction  is  a 
sale,  not  a  bailment,1  if  the  wheat  be  thrown  into  the 
common  mass,  with  the  understanding  or  agreement 
that  the  person  receiving  it  may  take  from  it  at  pleasure, 
and  appropriate  the  wheat  so  taken  to  the  use  of  him- 
self or  others,  on  the  condition  of  his  procuring  other 
wheat  to  supply  its  place.2  On  the  other  hand,  the  doc- 
trine of  a  different  line  of  cases,  as  lately  formulated,  is 
that  the  contract  is  one  of  bailment  and  not  of  sale, 
where  a  warehouseman  receives  grain  to  be  stored  for 
the  owner,  and  places  it  in  a  common  bin  with  his  own 
and  that  received  from  other  depositors,  and  sells  from 
this  receptacle,  but  always  reserves  enough  to  answer 
the  demand  of  each  owner.3 

Intermediate  view.  The  intermediate  general  propo- 
sition said  to  be  asserted  in  some  of  the  cases  is  that 
where  grain  is  deposited  with  any  person  with  the 
understanding  that  he  may  use  it  on  his  own  account, 
and  when  the  depositor  desires  to  sell,  that  the  other 
will  pay  the  highest  price,  or  return  a  like  quantity  or 
quality,  in  such  cases  the  transaction,  if  not  an  imme- 
diate sale,  is  a  sale  at  the  option  of  the  receiver.4 

Latest  test  suggested.  And  under  the  latest  test  sug- 
gested, the  transaction  is  a  bailment  if  the  depositor,  by 
his  contract,  can  compel  a  delivery  of  grain,  but  is  a 
sale  if  the  dealer  has  an  option  to  pay  either  in  grain  or 
in  money;5  and  the  dealer  becomes  the  owner  of  the 
grain,  and  is  liable  to  pay  for  it  whenever  called  upon, 
if  it  is  received  under  a  contract,  either  express  or  im- 
plied, to  pay  the  person  delivering  it  the  market  price 
whenever  he  chooses  to  demand  it,  and  is  mixed  with 
other  grain  of  like  quality,  in  bins,  from  which  ship- 
ments are  made  daily,  where  there  is  no  understanding 


21  SIMILAR  TRANSACTIONS.  $   17 

that  the  owner  shall  have  the  right  to  demand  either 
his  own,  or  a  like  quantity  of  other  grain  in  return.6 

1  See  citations  in  next  note. 

2  Chase  r.  Washburn,  1  Ohio  St.  244,  252 ;  59  Am.  Dec.  623,  620. 
And  see  Lonergan  v.  Stewart,  55  111.  44,  47  ;  Richardson  v.  Olmsteacl, 
74  111.  213,  216 ;  Johnston  r>.  Browne,  '37  Iowa,  200 ;  Fishback  v.  Van 
Dusen,  33  Minn.  Ill  ;  Andrews  v.  Richmond,  34  Hun,  20,  24. 

3  Rice  v.  Nixon, 97  Ind.  97  ;  49  Am.  Rep.  730  :  Battenberg  v.  Nixon, 
97Ind.  106.    And  see  Nelson  v.  Brown,  53  Iowa,  555  ;  Sexton  v.  Graham, 
53  Iowa,  181,  192.    Compare  Irons  v.  Kentner,  51  Iowa,  88  ;  33  Am. 
Rep.  119.    Consult  further  2  Kent  Com.  (12th  ed.)  365,  396 ;  6  Am.  Law 
Rev.  450  ;  19  Cent.  L.  J.  269. 

4  Ledyard  v.  Hibbard,  48  Mich.  421,  426  ;  42  Am.  Rep.  474.    And  see 
Nelson,  v.  Brown,  44  Iowa,  455. 

5  Lyon  v,  Lenon,  7  N.  E.  Rep.  (Ind.)  311 ;  22  The  Reporter,  518. 

6  Lyon  v.  Lenon,  7  N.  E.  Rep.  (Ind.)  312  ;  22  The  Reporter,  518. 


17.  Delivery  for  resale.  —  Return  of  money  or  prop- 
erty. In  a  case  where  property  was  not  taken  on  com- 
mission, or  in  any  event  to  be  returned,  it  was  laid 
down  that  when  property  is  sold  and  delivered  to  be 
paid  for  upon  a  resale,  the  purchaser  must  either  return 
the  money  or  the  property,  whatever  may  happen  in 
the  mean  while.1  And  if  the  property  is  not  returned 
in  a  reasonable  time,  a  resale  will  be  presumed.2  The 
lapse  of  time  in  such  cases  does  not  act  upon  the  char- 
acter of  the  original  transactions,  converting  a  bailment 
into  a  sale  and  transfer  of  title,3  but  upon  the  consider- 
ation, determining  its  maturity  from  a  presumed  resale 
within  a  reasonable  time.* 

Action  of  accredited  agent.  There  can  be  recovery,  as 
upon  an  absolute  sale  of  goods,  where  they  were  deliv- 
ered under  an  agreement  to  sell  them  as  an  accredited 
agent  of  a  party,  and  to  return  those  unsold  at  a  certain 
time,  but  none  were  returned  at  or  before  that  time.5 

Receipt  or  memorandum  indicating  sale.  And  a  re- 
ceipt for  fish,  to  be  paid  for  when  sold  at  a  specified 
price,  is  evidence  of  a  sale  of  the  fish  on  the  designated 
terms,  and  not  of  a  bailment.6 


§   18  SIMILAR  TRANSACTIONS.  22 

Recipient  becoming  factor,  etc.  But  the  transaction 
has  been  held  not  a  sale  passing  the  title,  but  a  mere 
bailment,  where  the  arrangement  was  such  that  the 
party  receiving  the  goods  did  not  take  them  in  his  own 
right,  but  became  the  factor  or  agent  of  the  party  deliv- 
ering them.7 

1  Blow  v.  Spear,  43  Mo.  496,  498. 

2  Blow  v.  Spear,  43  Mo.  496,  498.    And  see  McArthur  v.  Wilder,  3 
Barb.  66. 

3  Transfer  of  title  :  See  subsequent  chapter  of  book. 

4  Blow  v.  Spear,  43  Mo.  4CG,  498. 

5  GriHn  r.  Keith,  1  Hilt.  58.     Compare  Marsh  v.  Wickham,  14 
Johns.  107,  16J. 

6  McArthur  v .  Wilder,  3  Barb.  66.    A  memorandum  has  also  been 
held  to  import  a  sale  of  a  number  of  shares  cf  s^oc'.:,  whore  it  set 
forth  the  receipt  thereof  for  a  specified  sum  paid,  upon  an  under- 
standing that  the  signer  was  to  give  the  other  party  one  half  of 
whatever  price  the  stock  was  sold  for,  o\  er  and  above  the  sum  paid  : 
Jones  v.  Kent,  45  X.  Y.  Sup.  Ct.  66,  6J. 

7  Blood  7\  Palmer,  11  Me.  414,  418  ;  26  Am.  Dec.  547.     And  see 
Morss  v.  Stone,  5  Barb.  515,  518. 

\  18.  Delivery  to  manufacturer,  —  Obligation  to  restore 
identical  or  equivalent  things.  Application  has  been 
made  in  a  case  where  materials  were  delivered  to  a  man- 
ufacturer, of  the  distinction  between  the  obligation  to 
restore  the  specific  things,  and  the  obligation  to  restore 
things  of  the  like  kind  and  value,1  which  is  said  to  hold 
good  in  cases  of  hiring  as  well  as  in  cases  of  deposits  and 
gratuitous  loans.2 

Transaction  between  merchant  and  tanner.  And  a 
transaction  between  a  merchant  and  a  tanner  is  a  sale, 
so  that  the  property  may  be  seized  in  execution  by 
the  tanner's  creditors,  where  hides  are  delivered  by  the 
merchant  to  the  tanner  under  a  contract  that  they  are 
to  be  charged  at  cost  and  a  certain  commission,  and 
interest  after  a  specified  period,  and  when  tanned  are 
to  be  returned  to  the  party  delivering  them,  who  is  to 
sell  them,  and  a'ter  deducting  the  cost,  commission,  and 
guaranty  of  solvency,  to  pay  the  balance  to  the  tanner,3 


23  SIMILAR  TRANSACTIONS.  §  19 

Cloth  left  ivith  tailor.  So  where  one  buys  cloth  at  a 
sheriff's  sale,  and  leaves  it  with  a  tailor,  to  be  made  up 
for  the  latter's  own  profit,  he  accounting  to  the  pur- 
chaser only  for  the  price  of  the  cloth,  it  is  a  sale  to  such 
tailor  at  a  certain  stipulated  price,4  and  not  a  hiring  nor 
a  loan,  nor  any  other  bailment  or  contract.5 

Contract  with  powder  company.  And  a  contract  with 
a  powder  company  has  been  construed  to  imply  title  in 
the  manufacturer,  where  by  such  contract  the  company 
agrees  to  supply  the  inventor  and  patentee  of  an  explo- 
sive compound  called  "  dualin,"  with  advances  of  cash 
and  materials  to  be  "charged  to  him"  against  manu- 
factured goods  " consigned"  to  them  for  sale,  and  for 
which  they  desired  to  secure  the  exclusive  selling 
agency,  the  principal  design  being  expressed  to  be  to 
control  the  demand  for  the  "joint  interest"  of  the 
parties.6 

1  Grier  v.  Stout,  2  III.  App.  602, 606. 

2  Grier  v.  Stout,  2  111.  App.  602,  606.    And  see  Chase  v.  Washburn, 
1  Ohio  St.  246,  249  ;  59  Am.  Dec.  323  ;  Story  on  Bailments,  \  439  ;  Lon- 
ergan  v.  Stewart,  55  111.  44,  49  ;  Holbrook  v.  Armstrong,  10  Me.  31,  34. 

3  Jenkins  v.  Eichelberger,  4  Watts,  121 ;  28  Am.  Dec.  691,  692.    And 
Prichett  v.  Cook,  62  Pa.  St.  193, 197 ;  Butterfield  v.  Lathrop,  71  Pa. 
225,  229,  230.    Compare  Johnson  v.  Ensign,  4  Atl.  Rep.  (Pa.)  37. 

Dick  v.  Lindsay,  2  Grant  Cas.  431, 435,  436. 

Dick  v.  Lindsay,  2  Grant  Cas.  431, 435,  436. 
6    Dittmar  v.  Norman,  118  Mass.  319,  324.    And  see  Powder  Co.  v. 
Burkhardt,  97  U.  S.  110, 116, 120.    Compare  Wood  v.  Orsen,  25  N.  Y. 
348,  349  ;  Smith  v.  James,  7  Cowen,  328,  330  ;  Schenck  v.  S'aunders,  13 
Gray,  37,  41 ;  Mansfield  v.  Converse,  8  Allen,  182, 184. 


3 
see: 

1 


\  19 .  Delivery  under  conditional  sale»  —  Pay  men  t  as  con- 
dition  precedent.  It  is  the  general  doctrine  that  where 
a  sale  is  made,  and  possession  delivered  to  the  vendee 
upon  the  express  condition  that  the  title  to  the  thing  is 
to  remain  in  the  vendor  until  the  purchase  price  be  paid, 
such  payment  is  strictly  a  condition  precedent,1  and 
until  performance  thereof,  the  sale  is  incomplete,  and 
the  right  of  property  is  not  vested  in  the  vendee.2  Such 


§   19  SIMILAR  TRANSACTIONS.  24 

a  vendee  is  deemed  only  a  bailee  for  a  specific  purpose, 
who  has  merely  a  bare  right  of  possession,  and  having 
no  title  to  the  property  can  pass  none  to  others.3 

Transferable  interest,  etc.,  under  Pennsylvania  doctrine. 
But  in  Pennsylvania,  a  delivery  on  a  conditional  sale, 
the  property  to  remain  in  the  vendor  until  the  goods 
are  paid  for,  with  right  to  reclaim  them,  is  void  as 
respects  the  vendee's  creditors,  or  an  innocent  pur- 
chaser from  the  vendee.4  And  it  is  there  held  that  such 
an  arrangement  confers  a  transferable  interest,  and  is 
something  more  than  a  bailment,  since  the  title  would 
pass  the  instant  of  payment.5  The  distinction  drawn  is 
between  a  present  sale  and  delivery  of  personal  prop- 
erty to  the  vendee,  coupled  with  an  agreement  that  the 
title  shall  not  vest  in  the  latter  unless  he  pays  the  price 
agreed  upon  at  the  time  appointed  therefor,  and  that  in 
default  of  such  payment,  the  vendor  may  recover  pos- 
session of  the  property,  which  transaction  is  a  contract 
invalid  as  to  creditors,6  and  a  bailment  for  use,  or  as  it 
is  sometimes  called,  a  lease  of  the  property,7  coupled 
with  an  agreement  whereby  the  lessee  may  subse- 
quently become  owner  of  the  property  upon  payment 
of  a  price,  which  transaction  is  valid  as  against  third 
parties  as  well  as  between  those  immediately  concerned.8 
And  it  is  laid  down  that  whenever  it  appears  from  the 
contract  between  the  parties  that  the  owner  of  personal 
property  has  transferred  the  possession  thereof  to  an- 
other, reserving  to  himself  the  naked  title  thereof,  solely 
for  the  purpose  of  securing  payment  of  the  price  agreed 
upon  between  them,  the  contract  is  necessarily  a  con- 
ditional sale,  and  not  a  bailment.9 

1  Cobb  v.  Tufts,  2  Tex.  App.  (Civ.  Gas.)  ?  152. 

2  Cobb  i'.  Tufts,  2  Tex.  App.  (Civ.  Gas.)  §  152.    See  Ridgway  v. 
Kennedy,  5G  Mo.  -'4,  25  ;  Hamvuy  r.  Wallace,  18  Ind.  377,  370;  Hotch- 
kiss  ?\  Hunt,  4!)  Me.  213,  2ls» ;  Coggill  v.  Hartford  etc.  R.  R.  Co.  3  Gray, 
5l'i.  54fi  :  S.  C.  Langdell's  Cases  on  Sales,  713,  714  ;  Ballard  v.  Burgett, 
40  N.  Y.  314,  315 ;  S.  C.  Langdeil's  Cases  on  Sales,  730. 


25  SIMILAR  TRANSACTIONS.  g   20 

•      3    Coggill  v.  Hartford  etc.  B.  B.  Co.  3  Gray,  545,  548 ;  Langdell's 
Cases  on  Sales,  713,  715.     • 

4  Krause  v.  Commonw.  93  Pa.  St.  418, 421.    And  the  vendor's  right 
as  against  the  vendee's  creditors,  is  regarded  as  a  secret  and  invalid 
lien  for  the  purchase  money  :  Haak  v.  Lindejnan,  64  Pa.  St.  499,  501 ; 
37  Am.  Rep.  661. 

5  Krause  v.  Commonw.  93  Pa.  St.  418,  421. 

6  Forrest  v.  Nelson,  108  Pa.  St.  481,  486  ;  S.  C.  19  The  Reporter,  380, 
881 ;  S.  C.  32  Alb.  L.  J.  260. 

7  See  Dando  v.  Foulds,  105  Pa.  St.  74,  76. 

8  Forrest  v.  Nelson,  108  Pa.  St.  481,  4^6  ;  S.  C.  19  The  Reporter,  380, 

381.  Following  Haak  v   Lindeman,  64  Pa.  St.  499;  37  Am.  Rep.  661 ; 
Stadtfeldt  v.  Huntsman,  92  Pa.  St.  53  ;  Brunswick  etc.  Co.  v.  Hoover, 
95  Pa.  St.  508. 

9  Forrest  v.  Nelson,  108  Pa.  St.  481,  488  ;  S.  C.  19  The  Reporter,  380, 

382.  And  while  it  is  good  as  between  the  parties  themselves,  it  is 
worthless  as  to  creditors  and  bona  fide  purchasers  from  the  transferee 
without  notice :  Forrest  v.  Nelson,  108  Pa.  St.  481,  488. 

\  20,  Privilege  of  purchase.  —  Keeping  chattel  or  pay- 
ing  for  its  use.  Where  by  a  contract  the  ven  dee  receives 
a  chattel  to  keep  for  a  certain  time,  and  then  to  become 
the  owner  thereof,  if  he  has  paid  the  stipulated  price, 
but  if  otherwise,  to  pay  for  its  use,  the  vendee  receives 
it  as  bailee,  and  the  property  is  not  changed  until  the 
price 'is  paid.1  And  a  contract  is  a  bailment  for  hire, 
and  not  a  conditional  sale,  by  which  a  yoke  of  cattle 
was  delivered  to  another,  to  keep  and  work  in  a  farmer- 
like  manner  for  one  year,  and  then  to  be  returned,  with 
the  privilege  to  pay  a  price  named  and  keep  the  cattle, 
another  animal  being  delivered  at  the  time  for  the  use 
of  the  cattle.2  At  most,  there  is  said  to  be  in  such  a  case 
an  agreement  for  a  future  sale,  or  rather,  an  oft'er  to  sell, 
with  time  given  for  its  acceptance.3 

Option  to  purchase  or  to  return.  But  an  option  on  the 
part  of  the  buyer  to  purchase  if  he  likes,  is  essentially 
different  from  an  option  to  return  a  purchase  if  he 
should  not  like.4  In  the  one  case,  the  title  will  not  pass 
until  the  option  is  determined,  while  in  the  other  the 
property  passes  at  once,  subject  to  the  right  to  rescind 
and  return.5 

NEWMAKK  SALES.  — 3. 


§   21  SIMILAR  TRANSACTIONS.  26 

1  Enlow  ??.  Klein,  79  Pa.  St.  488,  490.    Quoting  and  following  Rose 
v.  Story,  1  Barr.  190.    Citing  to  same  effect,  Clark  v.  Jack,  7  Watts  & 
8.  37~> ;  also  McCullough  r.  Porter,  4  Watts  &  S.  177 ;  Lehigh  Co.  v. 
Field,  8  Watts  &  S.  323  ;  Rowe  r.  Sharpe,  51  Pa.  St.  346  ;  Seeker  ^^ 
Smith,  9  Pa.  St.  469.    Distinguishing  Martin  ?>.  Mathiot,  14  Serg.  &  R. 
214.    Compare  Crist  v.  Kleber,  79  Pa.  St.  290, 292. 

2  Chamberlain  v.  Smith,  44  Pa.  St.  431,  433. 

3  Chamberlain  r>.  Smith,  44  Pa,  St.  431,  434. 

4  Hunt  v.  Wyman,  100  Mass.  198,  200. 

5  Hunt  v.  Wyman,  100  Mass.  198,  200. 

\  21.  Privilege  of  return. —  Option  to  return  or  pay, 
etc.  Where  a  party  to  whom  an  article  is  delivered  has 
the  option  to  return  the  article  or  pay  its  value  in 
money,  the  property  passes,  and  the  transaction  is  not 
a  bailment  but  a  sale  or  exchange.1  For  the  rule  of  law 
is  said  to  be  well  established  that  when  a  chattel  is  de- 
livered by  one  person  to  another,  who  has  an  election 
to  return  it,  or  to  pay  for  it,  or  to  return  some  other 
property  as  a  compensation  for  it,  such  chattel  becomes 
the  property  of  the  person  so  receiving  it.2 

Dissatisfaction  with  contemporaneous  trade.  And  a 
transaction  has  been  held  to  amount  to  a  sale  instead 
of  a  technical  bailment  where  there  was  a  delivery 
of  animals  to  be  returned,  or  their  value,  unless  the 
party  receiving  them  should  be  dissatisfied  with  another 
contemporaneous  trade,  in  which  case  they  were  to 
remain  his  property  forever.3 

Waiver  of  right  to  insist  upon  return.  So  there  may  be 
a  waiver  of  the  right  to  insist  upon  the  return  of  an  article 
loaned,  by  allowing  the  stipulated  option  and  accepting 
the  value  of  the  article,  partly  in  due  bills,  thus  treating 
the  transaction  as  a  sale  and  the  amount  due  as  a  debt.4 

1  Holbrook  v  Armstrong,  10  Me.  31, 34.    And  see  Buswoll  r.  Bick- 
nell,  17  Me.  344,  347  ;  Perkins  v.  Douglass,  20  Me.  317,  31S  ;  McKinney 
v.  Bradlee,  117  Mass.  321,  322.    Bailment  for  safe-keeping,  sale,  or 
return  :  Middleton  v  Stone,  111  Pa.  St.  589. 

2  Walker  v.  Blake,  37  Me.  373,  375. 

3  Holbrook  v.  Armstrong,  10  Me.  31,  34.    Compare  Fuller  v.  Bus- 
well,  34  Vt.  107,  109,  110. 

4  Person  v.  Civer,  28  How.  Pr.  139, 141. 


27  SIMILAR  TRANSACTIONS.  $   22 

g  22,  Sale  or  lease.  —  Conveying  whole  interest.  Where 
that  which  purports  to  be  a  lease  conveys  the  whole  in- 
terest of  the  lessor,  as  on  a  lease  of  coal  until  no  coal 
remains,  it  differs  in  no  respect  from  a  sale.1 

Sale  under  guise  of  renting.  And  agreements  have 
generally  been  held  to  amount  to  sales,  passing  the  title 
to  the  vendee,  though  purporting  to  be  contracts  for 
renting  articles,  such  as  pianos,  sewing-machines,  etc., 
usually  taken  on  the  instalment  plan,  where  the  price 
and  terms  of  payment  show  that  the  real  transaction 
was  intended  to  be  a  sale,  and  was  such  a  contract,  and 
that  the  device  of  calling  it  a  renting  was  resorted  to  in 
order  to  secure  the  payment  of  a  balance  of  the  pur- 
chase money.2 

Formalities  of  lease  lacking.  So  an  agreement  or 
note  for  the  renting  of  an  organ,  with  the  understand- 
ing that  011  payment  of  all  the  rent  a  bill  of  sale  of  the 
organ  shall  be  given,  which  agreement  is  not  in  the 
form  of  a  lease,  and  does  not  contain  the  usual  stipu- 
lations of  such  an  instrument,  and  is  not  signed  by 
the  apparent  lessor,  is  a  conditional  sale  of  the  organ, 
and  not  a  lease  thereof.3 

Unrecorded  instrument  construed  as  sale.  And  where, 
in  the  instrument  of  conveyance,  the  form  of  a  lease 
is  used  to  cover  the  real  transaction,  and  the  sums  stip- 
ulated to  be  paid  are  for  rent,  but  the  total  instalments 
would  amount  to  more  than  was  likely  to  be  paid  for 
the  use  of  the  property,  the  arrangement  will  be  re- 
garded as  a  sale ; 4  and  if  unrecorded,  is  liable  in  Illi- 
nois to  be  defeated  as  fraudulent  by  creditors  of  the 

mdee  in  possession.5 

Lease  giving  privilege  of  purchase.  But  in  Missouri, 
a  written  contract  purporting  to  be  a  lease  of  an  organ, 
conditioned  for  the  payment  of  rent  monthly,  and  giv- 
ing the  privilege  of  purchasing  at  any  time  during  the 


§   23  SIMILAR  TRANSACTIONS.  28 

continuance  of  the  lease,  at  a  price  fixed,  in  which 
event  all  previous  payments  should  be  deducted,  has 
been  held  no  sale,  where  the  title  was  expressly  re- 
served, but  a  lease,  with  the  privilege  of  purchase  within 
the  period  for  which  the  organ  was  let.6 

Distinction  in  Pennsylvania.  And  in  Pennsylvania, 
contrary  to  what  has  been  declared  the  weight  of  au- 
thority,7 a  distinction  is  made  between  a  present  sale 
and  delivery  of  personal  property,  coupled  with  ail 
agreement  that  the  title  shall  not  vest  in  the  latter,  un- 
less he  pays  the  price  agreed  upon  at  the  time  appointed 
therefor,  and  that  in  default  of  such  payment  the 
vendor  may  recover  possession,  which  transaction  is 
invalid  as  to  creditors,8  and  a  bailment  for  use,  or  as 
it  is  sometimes  called,  a  lease  of  the  property,  coupled 
with  an  agreement  whereby  the  lessee  may  subse- 
quently become  owner  of  the  property  upon  payment 
of  a  price  agreed  upon,  which  transaction  is  good,  both 
between  the  parties  and  as  against  creditors.9 

1  Sanderson  v.  Scran  ton,  105  Pa.  St.  469,  473. 

2  See  Greer  v.  Church,  13  Bush,  433  ;  Knittel  r.  Gushing,  57  Tex. 
354  ;  44  Am.  Rep.  598,  600  ;  Singer  Manuf.  Co.  ?<.  Cole,  4  Lea,  439  ;  -^0 
Am.  Rep.  21  ;   Lucas  r.  Campbell,  88  111.  447,  449;  31  Am.  Rep.  81; 
Pri~e  ?\  McCalUster,  3  Grant  Cas.  248  ;  Singer  Manuf.  Co.  v.  Graham, 
8  Or.  17  ;  34  Am.  Rep.  572. 

3  Hine  v.  Roberts,  48  Conn.  268,  269  ;  40  Am.  Rep.  170. 

4  Hervey  v.  Locomotive  Works,  93  IT.  S.  664. 

5  Hervey  v.  Locomotive  Works,  93  U.  S.  664.    And  see  Fosdick  v. 
Schall,  99  U.'  S.  235,  250  ;  Heryford  v.  Davis,  102  U.  S.  235,  244. 

fi  Sumner  v.  Cotley,  71  Mo.  121.  Compare  Kohler  v.  Hays,  41  Cal. 
455,  4-5S. 

7  See  Cole  v.  Berry,  13  Vroom,  308  ;  36  Am.  Rep.  511,  517. 

8  See  citations  in  next  note. 

9  Forrest  v,  Nelson,  10S  Pa.  St.  481 ;  19  The  Reporter,  380,  381.    And 
s^o  Stfidtrteld  v.  Huntsman,  92  Pa,  St.  53  ;  37  Am.  Rep.  661,  n.  6fi4  ; 
Brunswick  and  Balke  Co.  r.  Hoover,  95  Pa.  St.  508  ;  49  Am.  Rep.  674  ; 
Edward's  Appeal,  105  Pa.  St.  103. 

\  23.  Sale  or  pledge.  —  Sale  and  not  pledge  or  mort- 
gage. A  transaction  may  be  a  sale  and  not  a  pledge  or 
mortgage,  although  there  is  an  agreement  that  the  ex- 


29  SIMILAR  TRANSACTIONS.  g    23 

cess  on  a  resale  should  be  credited  to  the  original  seller ; l 
and  an  assignment  of  a  mortgage  by  a  bank  officer  to  a 
person  who  agrees  to  resell  it  to  the  bank,  if  the  latter 
afterwards  wishes  to  buy  it,  has  been  held  a  conditional 
sale  of  the  mortgage,  with  a  reservation  of  the  right  of 
repurchase,  and  not  a  pledge  or  equitable  mortgage  of  it.2 

Pledge  and  not  sale.  But  there  is  a  pledge  and  not  a 
sale  of  chattels,  where  they  are  delivered  to  a  party  as 
indemnity  for  suretyship ; 3  or  to  secure  the  payment 
of  a  debt  for  work,  with  power  to  sell  and  satisfy  the 
debt  out  of  the  proceeds  ; 4  or  when  a  bill  of  sale  of  per- 
sonal property  is  taken  at  a  price  less  than  the  estimated 
value  of  the  property,  with  an  agreement  that  the  origi- 
nal owner  shall  have  the  same  again  at  any  time  after  a 
fixed  day,  upon  refunding  the  price,  etc. ; 5  or,  accord- 
ing to  a  class  of  cases,  where  a  receipted  bill  of  parcels 
is  given,  accompanied  with  a  formal  delivery,  and  de- 
signed to  constitute  security  for  a  debt.6 

Parol  evidence  to  show  pledge.  The  weight  of  author- 
ity has  been  declared  to  be,  as  regards  regular  and 
formal  bills  of  sale,  that  parol  testimony  might  prop- 
erly be  received,  even  at  law,  where  it  is  blended  with 
equity  in  the  practice,  to  show  that  the  sale  evidenced 
by  such  instruments  was  not  absolute,  but  by  way  of 
security  or  pledge.7  Yet  the  rule  that  parol  evidence 
is  inadmissible  to  prove  that  a  sale  or  conveyance  in 
vriting  which  is  absolute  in  its  terms  was  not  intended 

>  be  absolute,  but  was  given  as -a  pledge  or  mortgage, 
is  well  established  in  some  of  the  States,8  in  regard  to 
actions  at  law  ;9  but  it  does  not  apply  to  a  mere  bill  of 
parcels;10  nor  to  a  suit  in  equity  ;]1  nor  where  the  title 
to  the  property  is  not  directly  in  issue.12 

1  Beeves  v.  Seeburn,  16  Iowa,  237. 

2  Commonw.  v.  Reading  Savings  Bank,  137  Mass.  431, 443.    Sale  and 
riving  in  payment,  and  not  pledge,  in  Louisiana:  Pomez  v.  Camors, 
'6  La.  An,  464,  465. 


2   24  SIMILAR   TRANSACTIONS.  30 

3  Morgan  v.  Dodd,  3  Colo.  553. 

4  Houser  v.  Kemp,  3  Pa.  St.  208,  210. 

5  Kimball  v.  Hildreth,  8  Allen,  167. 

6  Shaw  v.  Wilshire,  65  Me.  485,  402.    And  see  Eastman  v.  A  very, 
23  Me.  248;  Beeman  v.  Lawton,  37  Me.  543 ;  Whitaker  v.  Stunner, 20 
Pick.  399  ;  Hazard  v.  Loring,  10  Gush.  267 ;  Walker  v.  Staples,  5  Allen, 

7  Jones  v.  Rahilly,  16  Minn.  323,  and  cases  cited. 

8  Newton  v.  Fay,  10  Allen,  505,  507. 

9  Harper  i*.  Ross,  10  Allen,  3^2 :  Pennock  v.  McCormick,  120  Mass. 
275,  277  ;  Philbrook  v.  Eaton,  134  Mass.  395,  400. 

10  Hazard  v.  Loring,  10  Gush.  207, 268  ;  Hildreth.  v.  O'Brien,  10  Allen, 
104. 

11  Newton  v.  Fay,  10  Allen,  505,  508. 

12  Reeve  ?'.  Dennett,  137  Mass.  315, 316.    And  see  Howard  v.  O'Dell, 
1  Allen,  85  ;  Blanchard  v.  Peasing,  4  Allen,  11s,  120. 

\  24.  Sale  or  mortgage.  —  Intention  as  criterion.  In 
determining  whether  an  instrument  is  a  conditional 
sale  or  a  mortgage,  where  the  language  of  the  instru- 
ment is  equivocal,  the  true  criterion  seems  to  be  the 
intention  of  the  parties,  as  evinced  by  the  whole  trans- 
action and  the  attendant  circumstances.1 

Conditional  sale  rather  than  mortgage.  And  the  trans- 
action has  usually  been  held  a  conditional  sale  rather 
than  a  mortgage,  when  the  relation  of  debtor  and  cred- 
itor is  not  created  by  the  transaction  and  never  existed, 
and  the  vendee  takes  and  retains  possession  of  the  prop- 
erty, and  its  value  is  not  perceptibly  in  excess  of  the 
consideration  paid,  and  there  is  nothing  to  indicate  an 
intent  to  transfer  the  property  as  a  mere  security.2 

Discharge  of  debt  as  test.  So  the  test  laid  down  in  re- 
gard to  grants  of  land,  said  to  be  found  in  the  question 
whether  the  debt  was  discharged  or  not  by  the  convey- 
ance,3 has  been  considered  to  apply  as  well  to  sales  and 
assignments  of  chattels.4 

Right  of  repurchase  or  redemption.  In  considering 
transactions  involving  the  right  of  repurchase,5  a  mort- 
gage and  a  conditional  sale  have  been  said  to  be  nearly 
allied  to  each  other,6  the  difference  between  them  being 


31  SIMILAR  TRANSACTIONS.  §   25 

said  to  consist  in  this,  that  the  former  is  a  security  for  a 
debt,  while  the  latter  is  a  purchase  accompanied  by  an 
agreement  to  resell  on  particular  terms.7  And  it  has 
been  laid  down  that  whenever  a  transaction  in  the  form 
of  an  instrument  which  may  be  regarded  as  a  bill  of 
sale,  resolves  itself  into  a  security  for  a  debt,  it  is  a 
mortgage,  provided  the  right  of  redemption  exists.8 

1  Rockwell  v.  Humphreys,  57  Wis.  410,  414. 

2  Rockwell  v.  Humphreys,  57  Wis.  410.  414,  and  cases  cited.    See, 
also,  Cook  v.  Lion  Fire  Ins.  Co.  7  Pacif.  Rep.  (Cal.)  784  ;  Russell  v. 
Hurkuess,  7  Pacif.  Rep.  (Utah)  865. 

3  See  Stephen  v.  Cushman,  35  111.  186. 

4  Glass  v.  Doane,  15  111.  App.  66. 

5  Sale  with  right  of  repurchase:  Cook  v.  Lion  Fire  Ins.  Co.  7 
Pacif.  Rep.  (Cal.)  784. 

6  See  citations  in  next  note. 

7  Turner  r.  Kerr,  44  Mo.  429,  431.    And  see  Logwood  v.  Hussey,  60 
Ala.  417.    Compare  Mahler  v.  Schloss,  7  Daly,  291. 

8  Wilmerding  v.  Mitchell,  42  N.  J.  L.  476,  479.    And  see  Cooper  v. 
Brock,  41  Mich.  488,  490 ;   Smith  v.  Beattie,  31  N.  Y.  542,  544.    But 
compare  Clayton  v.  Hester,  80  N.  C.  275. 

\  25.  Sale  or  consignment.  —  Contract  importing  con- 
signment and  not  sale.  A  consignment  of  goods  for 
sale,  and  not  a  sale  of  them,  is  imported  if  the  con- 
tract is  that  one  party  shall  take  goods  from  the  other, 
and  return  periodically  the  amount  of  sales,  at  the  prices 
charged  by  the  consignor,  who  will  furnish  the  con- 
signee with  all  goods  in  his  line.1 

JVb  relation  of  principal  and  agent.  But  the  relation 
of  the  parties  is  not  that  of  principal  and  agent,  if  the 
consignee  is  at  liberty  according  to  the  contract  between 
him  and  his  consignor  to  sell  at  any  price  he  likes,  and 
receive  payment  at  any  time  he  likes,  though  he  is  to 
be  bound,  if  he  sells  the  goods,  to  pay  the  consignor 
for  them,  at  a  fixed  price  and  a  fixed  time.2 

Sale  and  not  consignment.  And  there  is  a  sale  where 
a  consignment  is  made  of  goods  to  be  paid  for  at  a  price 
agreed  upon,  but  which  bears  no  relation  to  the  prices 


§   25  SIMILAR  TRANSACTIONS.  32 

at  which  the  consignees  might  sell,  or  the  amounts 
they  might  be  able  to  collect.3 

Agent  becoming  purchaser.  A  consignee  may  also  by 
the  terms  of  his  agency  be  the  agent  of  the  consignor 
until  the  goods  are  sold,  yet  then  become,  as  between 
himself  and  the  consignor,  the  purchaser  of  the  goods, 
and  principal  debtor  therefor.4 

Value  in  invoice.  The  fact  that  a  value  is  stated  in 
the  invoice  of  merchandise  accompanying  its  shipment, 
does  not  by  itself  absolutely  indicate  that  the  property 
was  sold  and  not  consigned,  but  may  be  designed  as  a 
guide  and  direction  as  to  the  amount  or  sum  for  which 
the  merchandise  might  be  sold  by  the  consignee.5 

Word  "consign."  So  the  word  "consign"  has  been 
held  not  to  imply  a  title  to  the  goods  in  the  manufact- 
urer, when  controlled  in  its  common  meaning  by  the 
other  provisions  of  the  contract  as  applied  to  the  sub- 
ject-matter.6 But  it  is  different  where  the  other  pro- 
visions of  the  contract  do  not  so  control  it,  but  show 
that  the  word  was  used  in  its  obvious  and  common 
meaning,  implying  title  in  the  consignor.7 

Consignments  to  cover  advances.  The  rule  upon  the 
subject  of  consignments  to  cover  advances  is  stated  to 
be,  that  if  there  is  a  mere  agreement  to  ship  goods  or 
produce  to  pay  for  advances,  without  transmission  of 
the  bill  of  lading  or  notice  of  the  shipment,  the  prop- 
erty shipped  would  not  belong  to  the  consignee  until 
actually  received  and  possessed  by  him.8  But  if  the 
agreement  appropriates  specific  property  to  the  pay- 
ment of  such  advances,  and  such  appropriation  is  evi- 
denced and  authenticated  by  a  bill  of  lading,  then  the 
title  to  the  property  passes  to  the  consignee  by  a  deliv- 
ery thereof  to  the  carrier.9 

1  Walker  v.  Butterick,  105  Mass.  237,  238.  No  title  in  debtor  where 
case  resembles  shipment  of  goods  to  an  agent  to  sell  on  commission  : 
-Alexander  v.  Tomlinson,  40  Ark.  216,  218,  219.  Sale  of  agricultural 


33  SIMILAR  TRANSACTIONS.  §   26 

machines  held  not  contemplated:  Williams  Brothers  v.  Davis,  47 

Io\va,  3C3,  307.    Agency  created  by  agreement  to  "  stock  "  wharf  with 
coal  and  wood  :  Audenried  v.  Betteley,  8  Allen,  302,  307. 

2  Ex  parte  White,  re  Nevill,  Law  R.  6  Ch.  397,  403 ;  affirmed  as 
Towle  v.  White,  21  Week.  R.  465.    Del  credere  commission  :  See,  also, 
Converseville  Co.  v.  Chambersburg  Co.  14  Hun,  609,  610,  611. 

3  In  re  Linforth,  4  Sawy.  370, 374.    Sale  of  wagons  shipped  and  not 
agency  to  sell  them  on  commission  :  Jordan  v.  Easter,  2  III.  App.  73. 

4  Nutter  v.  Wheeler,  2  Low.  346, 348, 349.    And  see  Ex  parte  White, 
Law  li.  G  Ch.  397.    But  compare  Ayres  v.  Sleeper,  7  Met.  45, 46. 

5  Pam  v.  Vilmar,  54  How.  Pr.  235. 

6  Schenck  v.  Saunders,  13  Gray,  37.    Instructions  held  not  to  de- 
fine the  word  "  consign  "  :  Reissner  v.  Oxley,  80  Ind.  580,  585. 

7  Dittinan  v.  Norman,  118  Mass.  319,  324. 

8  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325,  332. 

9  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325,  332.    And  see  HallL 
day  v.  Hamilton,  11  Wall.  564  ;  Wetzel  v.  Power,  5  Mont.  214,  225. 

\  28 .  Remedies  in  such  transactions .  —  Action  for  goods 
sold  and  delivered.  A  count  for  goods  sold  and  deliv- 
ered is  not  supported  by  proof  that  the  goods  were  con- 
signed to  the  defendant  for  sale,  and  that  he  sold  them 
and  unreasonably  refused  or  neglected,  after  demand, 
to  account  for  the  proceeds,1  since  such  action,  however 
inexcusable,  cannot  convert  the  consignment  into  a 
sale  ; 2  nor  is  an  action  for  goods  sold  and  delivered 
maintainable  upon  an  arrangement  whereby  there  is 
no  transfer  to  a  factor  of  the  property  in  the  goods,  so 
that  one  of  the  essential  elements  of  a  sale  is  wanting.3 

Action  against  carrier.  But  the  consignee  of  mow- 
ing machines  to  be  sold  on  commission,  though  not  ac- 
quiring the  title,  yet  has  such  a  special  property  that 
he  may  maintain  an  action  against  a  carrier  for  their 
detention  in  transit.4 

Evidence  in  replevin  suit.  And  in  action  of  replevin 
brought  to  recover  goods  sent  by  the  plaintiff  to  be  pur- 
chased by  the  receiver  or  sold  on  account  of  the  sender, 
as  the  former  should  elect,  it  has  been  held  that  where 
the  former  puts  in  evidence  that  he  received  the  goods 
on  consignment  merely,  the  latter  is  properly  allowed 


$$   27-28  SIMILAR  TRANSACTIONS.  34 

to  testify  that  when  he  received  the  letter  of  the  former, 
he  decided  to  purchase  the  goods.5 

1  Ayres  v.  Sleeper,  7  Met.  45,  46. 

2  Ayres  v.  Sleeper,  7  Met.  45,  46.    Compare  Brown  v.  Holbrook,  4 
Gray,  102, 104  ;  Hull  v.  Richardson,  4  Gray,  598,  599. 

3  Wadsworth  v.  Gay,  118  Mass.  44,  53. 

4  Boston  etc.  R.  R.  Co.  ?>.  Warrior  Mower  Co.  76  Me.  251, 259.    And 
recover  not  only  his  own  damages,  but  such  as  accrued  to  the  com- 
pany as  general  owners:    Boston  etc.  R.  R.  Co.  v.  Warrior  Mower 
Co.  76  Me.  251,  259. 

5  Yaeger  Milling  Co.  v.  Brown,  128  Mass.  171, 173.    Evidence  gov- 
erning finding  of  jury  :  Chapman  v.  Kerr,  80  Mo.  15S.    Inference  of 
sale  to  consignee:   Holbrook  v.  Wight,  24  Wend.  169;  35  Am.  Dec. 
605,  n.  616. 

\  27.  Sale  or  payment.  —  Compensation  for  service. 
When  property  or  money  is  transferred  or  paid  as  a 
compensation  for  service,  this  does  not  constitute  a 
sale  of  the  money  or  property  for  a  price  in  service.1 

Payment  or  purchase  of  note.  And  the  payment  of  a 
note  by  a  third  person  does  not  constitute  a  contract  of 
purchase  thereof.2 

"  Giving  in  payment"  in  Louisiana.  In  Louisiana,  a 
contract  such  as  a  giving  in  payment  equally  with  a 
sale,  transfers  the  property  in  full  ownership  to  the 
purchaser,  and  differs  from  a  sale  mainly  in  making 
the  delivery  of  the  thing  transferred  essential  to  the 
completeness  of  the  contract.3 

1  See  Five  Per  Cent  Cases,  110  TJ.  S.  471, 478. 

2  Binford  v.  Adams,  3  N.  E.  Rep.  (Ind.)  753. 

3  Herold  v.  Stockwell.  32  La.  An.  949,  952.    And  compare  Miller  v. 
Schneider,  19  La.  An.  300,  301 ;  Bessan  v.  Moucheux,  21  La.  An.  617. 

J  28,  Further  distinctions.  —  Agency,  loan,  etc.  The 
cases  distinguish  the  contract  of  sale  from  one  of  agency ,l 
loan,2  trust,3  and  security.4 

Accord  and  satisfaction.  And  a  contract  of  sale  differs 
from  accord  and  satisfaction,  because  in  the  latter  the 
thing  is  given  for  the  purpose  of  quieting  a  claim,  and 
not  for  a  price.5 


35  SIMILAR  TRANSACTIONS.  §   28 

Contract  for  manufacture.  In  general,  the  reasoning 
of  the  cases  which  have  arisen  under  the  statute  of 
frauds,  is  said  to  imply  that  where  it  is  a  part  of  the 
very  contract  itself  that  the  articles  are  to  be  manu- 
factured, and  by  particular  persons  or  from  specific 
material,  or  in  a  prescribed  manner,  according  to  the 
order  and  direction  of  the  party  for  whom  the  articles 
are  made,  the  contract  is  for  the  manufacture  of  the 
articles,6  and  not  for  their  sale.7 

1  See  Black  v.  Webb,  20  Ohio,  304  ;  55  Am.  Dec.  446,  n.  459  ;  Depew 
v.  Keyser,  3  Duer,  335,  340  ;  Conable  v.  Lynch,  45  Iowa,  84. 

2  See  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325 ;  Home  v.  Wal- 
ton, 7  N.  E.  Rep.  (111.)  100  ;  Johnson  v.  Ensign,  4  Atl.  Rep.  (Pa.)  37. 

3  See  Ruthrauff  v.  Hagenbach,  58  Pa.  St.  103  ;  Bourg  v.  Lopez,  36 
La.  An.  439,  440. 

4  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325,  335 ;  Harold  v. 
Stockwell,  32  La.  An.  949,  952.    Arrangements  between  debtor  and 
creditor  :  Ochs  v.  Burger,  6  Heisk.  483,  486 ;  Gray  v.  Millay,  61  Me.  327. 

5  Bouvier  Law  Diet.  tit.  Sale  (15th  ed.)  606. 

6  Cain  v.  Weston,  26  Wis.  100,  103. 

7  See  Hight  v.  Ripley,  19  Me.  137 ;  Abbot  v.  Gilchrist,  38  Me.  260, 
261 ;  Edwards  v.  Railway  Co.  48  Me.  379,  380,  381 ;  Atwater  v.  Hough, 
29  Conn.  508,  513  ;  Gardner  v.  Joy,  9  Met.  177,  179  ;  Lamb  v.  Crafts,  12 
Met.  353,  356. 


29  CONSENT.  36 


CHAPTER  III. 

CONSENT. 

§  29.  In  general. 

§  :».  When  lacking. 

\  :n.  Turtles  consenting. 

\  32.  Offer  to  sell. 

§  :«.  Corrt'spoiKlonoo  of  acceptance  with  offer. 

\  :il.  Applications  of  requirement. 

\  ::.').  Time  foi'  nrrcphmrr. 

?  -">().  Limiting  time  for  acceptance. 

\  :57.  Modes  of  acceptance. 

\  :w.  Acceptance  by  acts. 

<i  .ID.  contract  by  letter. 

£  10.  Construction  of  coi Trspomlonce. 

\  '11.  Preliminary  iic^ntintioii  or  linal  agreement. 

I  -I!'.  Reduction  to  writing,  etc. 

\  -\'.\.  ( 'out  r:ict  by  triumph. 

g  44.  Implied  sulcs. 

\  29,  In  general,  —  Essential  to  contract.  The  consent, 
or  as  it  is  ^cnci-nlly  termed,  the  mutual  assent  of  th(« 
parties,  is  essential  to  a  contract  of  sale ;  *  for  a  contract 
implies  (lie  assent  of  two  minds. - 

Mni/  be  implied.  But  this  assent  need  not  be  express.8 
II  may  lx>  implied  from  the  language,  conduct,  or  p'si- 
unis  of  the  purtics.4  Thus,  the  fall  of  the  hammer  at  an 
auction  sale  will  bind  the  bargain,5  and  a  grmiiMinu; 
assent  may  be  sudicient.6  So  the  sending  of  goods 
ordered  may  consummate  the  sale.7 

Unqualified  and  identical  acceptance  of  offer.  A  mere 
proposal  or  offer  constitutes  no  bargain  of  itself,8  )>eini;- 
no  more  than  a  treaty  or  negotiation  for  a  sale  ;9  but  it 
must  be  accepted  by  the  other  party,10  and  the  assent 
must  he  unconditional  and  unqualified,11  and  com- 
pletely correspond  with  the  terms  of  the  offer.12 


37  CONSENT.  \   29 

Withdrawal  of  offer  and  giving  of  time.  While  the 
offer  remains  unaccepted,  it  is  optional  with  the  proposer 
to  withdraw  it  or  not;13  and  that  which  is  sometimes 
spoken  of  as  a  contract  for  the  sale  of  property,  but 
which  is  what  is  popularly  termed  a  refusal  of  the  prop- 
erty given  by  one  of  the  parties,  leaving  it  optional 
with  the  other  parly  whether  he  will  take  the  property 
within  a  certain  time  or  not,  would  not  be  valid  in  law, 
for  want  of  consideration,  unless  upon  some  other  con- 
sideration, or  under  seal;14  but  when  an  unretracted 
offer  giving  time  for  acceptance,  though  without  con- 
sideration, is  once  accepted,  the  contract  is  complete.15 

Variation  from  offer  as  counter-proposition.  Mutual 
assent  of  the  parties,  which  is  vital  to  the  existence  of  a 
contract,16  is  as  indispensable  to  the  modification  of  a 
contract  already  made  as  it  was  to  making  it  originally.17 
And  a  proposal  to  accept,  or  an  acceptance  of  an  offer, 
on  terms  varying  from  those  proposed,  amounts  to  a  re- 
jection of  the  oiler,  and  a  substitution  in  its  place  of  a 
Counter-proposition,18  which  cannot  become  a  contract 
until  assented  to  by  the  first  proposer.19  Nor  can  a 
party  who  has  submitted  a  counter-proposition  with- 
draw or  abandon  the  same,  without  the  assent  of  the 
other  party,  and  then  accept  the  original  offer  which  he 
has  once  virtually  rejected.20  For  an  offer  once  rejected 
is  at  end  ;21  but  a  mere  inquiry  may  not  amount  to  a 
counter-proposal  so  as  to  terminate  the  offer.22 

Contract  by  letter.  In  creating  a  contract  the  negotia- 
tion may  be  conducted  by  letter,  as  i.s  very  common  in 
mercantile  transactions ; 23  and  ordinarily  the  contract 
is  complete  when  the  answer  containing  the  acceptance ?i 
of  a  distinct  proposition,  is  dispatched  by  mail  or  other- 
wise, provided  it  be  one  with  due  diligence  after  the 
receipt  of  the  Jotter  containing  the  proposal,98  and  before 
any  intimation  is  received  that  the  offer  is  withdrawn.^ 
KJEWMAUK  SAJLKS.  —  4. 


§    29  CONSENT.  38 

1  See  Gardner  v.  Lane,  12  Allen,  39,40;  2  Kont  Com.  477  ;  Sum- 
mers v.  Mills,  21  Tex.  77,  8(5,  87  ;  Utley  v.  Donaldson,  04  U.  S.  20,  47. 

2  Thurston  v.  Thornton,  1  Gush.  89,  91.    And  see  Smith  v.  Gowdy, 
8  Allen,  566,567. 

3  See  citations  in  next  note. 

4  See  Street  v.  Chapman,  29  Ind.  142, 152  ;  Joyce  v.  Swann,  17  Com. 
B.  N.  S.  84, 101  ;  Payne  r.  Cavo,  3  Term  Hep.  148;  1  Lang-loirs  Cases 
on  Contracts,  1 ;  Gowing  v.  Knowles,  118  Mass.  232,  233  ;  Hoaclley  v. 
McLaine,  10  Bing.  482,  487. 

5  Payne  v.  Cave,  3  Term  Rep.  148 ;  1  Langclell's  Cas.  on  Contracts,  1. 

6  Joyce  ?'.  Swann,  17  Com.  B.  X.  S.  84,  101.    Loose  conversation 
may  not  bo  enough  to  make  a  binding  contract :  Thurston  r.  Thorn- 
ton, 1  Gush.  89,  93.    And  compare  Bruce  v.  Bishop,  43  Yt.  161,  164. 

7  See  Taylor  v.  Jones,  Law  R.  1  C.  P.  D.  87,  90. 

8  Brnce  ?'.  Bishop,  43  Vt.  161, 163.    See  \  8,  on  SALE  OR  PRELIMI- 
NARY NEGOTIATION. 

9  See  Carr  v.  Duval,  14  Peters,  77,  81. 

10  See  Thruston  r.  Thornton,  1  Cush.  89,  92  ;  Smith  ?•.   Gowdy.  8 
Allen.  566,  507;  Gowing  v.  K::o\ylcs,  1!8  Muss.  2:,2,  233.    The  contract 
becomes  binding  when  a  proposition  is  made  on  one  side  and  accepted 
on  the  other  •  2  Kent  Corn.  477. 

11  See    Hutcheson   v.  Blakeman,  3  Met.  (Ky.)  80,  82;    Duke   v. 
Andrews,  2  Ex.  290,  296  ;  Appleby  r.  Johnson,  Law  R.  9  Com.  B.  158. 

12  Summers  v.  Mills,  21  Tex.  77,  87  ;  Potts  r.  Whitehead,  23  X.  J. 
Eq.  51J,  514.    See  §  33. 

13  See  Summers  r.  Mills,  21  Tex.  77  ;  Hebb's  Case,  Law  R.  4  Eq.  9 ;  1 
Langdoll's  Cases  o-i  Contracts,  1,  42  ;  Payne  v.  Cave,  3  Term  Rep.  143  ; 
also  cases  cited  in  next  note. 

14  Faulkner  r/Hibard,  26  Vt.  452,  457.    And  see  Cooke  r.  Oxley,  3 
Term    Rep.  613  ;    1  Langdcll's  C-ises  on  Contracts,  2,  5.  61,  67,  6s  ; 
Routledge  v.  Grant,  4  Bing.  653  ;  Dickinson  v.  Dodds,  Law  R.  2  Ch.  D. 
463. 

15  Boston  etc.  R.  R.  v.  Bartlett,  3  Cush.  224  ;  1  Langdell's  Cases  on 
Contracts,  1C3.    A:;d  see  Stevenson  v.  McLean,  Law  R.  5  Q.  B.  D.  34G  ; 
29  Eng.  Rep.  341,  345. 

16  See  preceding  portion  of  section. 

17  rtley  v.  Donaldson,  94  U  S.  2J,  47. 

18  See  Jenness  r.  Mount  Hope  Iron  Co.  53  Mo.  20,  23. 

19  Fox  v.  Turner,  1  111.  A  pp.  153, 159. 

20  Fox  v.  Turner,  1  111.  App.  153,  159,  and  cases  cited. 

21  Hyde  v.  Wrench,  3  Beav.  334  ;  1  Langdell's  Cas.  on  Contracts,  13. 

22  Stevenson  v.  McLean,  Law  R.  5  Q.  B.  D.  346  ;  29  Eng.  Rep.  341, 
344. 

23  2  Kent  Com.  474.    Contract  by  letter  discussed  :  Xote  to  Maclay 
r.    Har\vy,  42  Am    Rep.  40;   rot 3  to   Philadelphia  Whiting  Co.  v. 
Detroit  White  Lead  Works,  24  X.  \V.  Rep.  :?So. 

24  Acceptance  must  be  direct  and  unconditional :  See  Hutcheson 
v.  Blakeman,  3  Met.  (Ky.)  SO. 

25.  See  Averill  v.  Hedge,  12  Conn.  424 ;  1  Langdell's  Cases  on  Con- 
tracts, 90,  98. 

26  2  Kent  Com.  477;  Abbott  r.  Shepard,  48  N.  H.  14, 16.  And  see 
Hutcheson  v.  Blakeman,  3  Met.  (Ky.)  80. 


39  CONSENT.  $   30 

§  3D.  When  laclziirj.  —  Misunderstanding  on  material 
matter.  Where  there  is  a  misunderstanding  as  to  any- 
thing material,  the  requisite  mutuality  of  assent  as  to 
such  thing  is  wanting,  so  that  the  supposed  contract 
does  not  exist,1  and  neither  party  is  bound.2  And  so 
long  as  there  is  a  dispute  going  on  between  the  parties 
as  to  the  terms  of  a  sale,  there  is  no  meeting  of 
minds.3 

Failure  to  fully  agree  on  terms.  Thus  there  can  be  no 
contract  of  sale  unless  the  parties  have  fully  agreed  on 
all  the  terms  of  the  contract,4  as  where  the  letters  relied 
on  do  not  show  that  the  parties  ever  agreed  on  the 
number  of  articles,  the  time  or  manner  of  delivery,  or 
the  other  terms  of  the  alleged  bargain;5  or  where  the 
parties  differed  concerning  the  length  of  credit  to  be 
given,  and  reached  no  conclusion  in  the  matter.6 

Colorable  sale.  And  a  mere  colorable  sale  of  personal 
property,  made  with  the  intention  that  the  title  should 
not  be  transferred  in  reality,  but  only  in  appearance, 

nveys  no  tide  whatever  to  the  apparent  purchaser.7 

Bantering  conversation.  Where  the  testimony  tended 
show  that  an  offer  was  intended  and  understood  to  be 
merely  jocose,  and  not  in  earnest,  it  has  been  held  that 
it  should  have  been  left  to  the  jury8  to  find  whether  it 
was  so  intended  and  understood.9 

1  Utley  v.  Donaldson,  94  U.  S.  29,  47.    It  is  no  contract  if  there  be 
an  error  or  mistake  of  a  fact,  or  in  circumstances  going  to  the 
essence  of  it :  2  Kent  Com.  477. 

2  Utley?;.  Donaldson,  94  U.  S.  29,  47.    In  tr-e  view  of  the  law  in 
such  cus  ',  there  has  been  only  a  negotiation  r  jsulti.ig  in  a  Luiure  to 
a-^ree:  Utley  ?>.  Donaldson,  !»4  U.  S.  2i),  47.    What  h:.s  occurred  is  as 
if  it  \yere  not,  and  the  rights  of  the  p  irtu>s  are  to  be  determined  ac- 
cordingly:  Utley  v.  Donaldson,  94  U.  S.  2!),  47.    £  >e  further  u^der 
MIHTAKK;  Lyman  v.  Robinson,  14  Allen,  2!-', '252  ;  CJ:iy  r.  Rickets,  23 
N.  W.  llt-p.  (Iowa)  755  ;  Butler  v.  Moses,  43  Ohio  St.  1C6, 171. 

3  Schenectady  Stove  Co.  v  Holbrook,  4  N.  E.  Rep.  (N.  Y.)  4. 

4  See  citations  in  succeeding  notes. 

5  Oakman  r.  Rogers,  120  Mass.  214,  215. 

6  Go\vi::g  v.  Knowles,  118  Mass.  2C2,  2*3. 


: 


' 

ABt*t  SB,  &  ;  HUWJBKi  r. 

7  -..-..-.-..i.-..  ::  *  ;\r.i-.-.  —    :::;.    .: .-  -  .-.;•.. 


£  31.    Parties  consenting. —  Personality  of  contracting 
rfant.    When  a  contract  is  made  in  which  the 
personality  of  the  contracting  party  is  or  may  be  of  im- 
portance,1 as  a  contract  with  a  man  to  write 

a  picture,  or  furnish  articles  of  a  particular  kind, 
ot  irben  be  rattn  ipon  tfw  efioiaetarot  igualiSesof  ra 

I..-;.'   .I..;.      -..-    ..;.-    .--.-:•;--..-.<          ..        ..:     1     •':  -    '.'.  '.  '         .-..";     j-:.i 

with  a  particular  party,  or  where  there  a  set- 

off,  no  other  person  can  interpose  and  adopt  the  con- 
tract;2 and  this  principle  has  been  applied  so  as  to 

without  notice  of  any  change  in  the  business  by  the  suc- 
cessor in  business  of  the  party  from  whom  they 
,-d,bya  custoi:  had  been  in  the  ha 

i  £  with  such  party,  with  whom  he  bad  a  IT. 

-x£»  bvught  frwm.  successor.    Bat  one  who 
a  shop  which  has  been  occupied  by  a 
:i  who  owes  him,  under  the  supposition 
.5  with  his  debtor,  bat  is  informed  before  leav- 
person  has  become  the  owner 
' 
'-      ..'-,-.-..    ...--....    ...,:.-:-•-    :.<>   -.  .    •••••.  .  .:.     ..-.:.   -....-     ..•• 

.  cannot  afterwards  resist  an  action  for  the 

rized  a&rv.  And 

if  one  party  sells  goods  in  fact  to  ano  owing 

that  the  sale  is  really  party  through  the  & 

as  his  agent,  and  solely  in  reliance  on  tl 
third  party,  the  seller  cannot  recover  therefor  from  the 
third  party,  who  had  purchased  the  goods  from  the 


41  CONSENT.  \   82 

second  party,5  as  the  case  is  not  one  of  mistaken  iden- 
tity. 6  but  of  unauthorized  assumption  concerning  the 
capacity  m  which  a  person  acted.7 

Several  acceptors.  An  offer  to  sell  made  in  writing  to 
several  persons  jointly,  and  signed  by  all  but  one  of 
them,  cannot  be  withdrawn  by  a  communication  to  one 
of  the  signers,  if  signed  by  the  others  in  ignorance  of 
such  withdrawal.8 

1  See  citations  in  next  note. 

2  Boulton  r.  Jones,  2  Ex.  564,  566 ;  Boston  Ice  Co.  r.  Potter,  123 

vra.  Rep.  9. 11.    And  see  Mitchell  r.  Lapage,  Holt  X.  P. 
253 ;  also  section  on  subject  under  MISTAKE. 

3  Boulton  r.  Jones,  2  Ex.  564,  566, 

4  Mudge  r.  Oliver,  1  Allen,  74. 

5  Stoddard  v.  Ham,  129  Mass.  383 ;  37  Am.  Rep.  369. 

6  Compare  Hardman  v.  Booth,  1  Hurl.  &  C.  803. 

7  Stoddard  r.  Ham,  129  Mass.  :s-{ ;  37  Am.  Rep.  369. 

8  Burton  r.  Shotwell,  13  Bush,  271.    Nor  ran  such  signer  affect 
the  validity  of  the  contract,  or  cancel  his  liability  by  erasinsrhis  name 
without  the  consent  of  the  other  acceptors:  Burton  r.  Shotwell,  13 
Bush.  271. 

\  32.    Offer  to  sell.— Notice  to  the  trade.    A  price  list 
is  a  mere  proposition,  which  may  be   withdrawn  at 
pleasure,  unless  accepted  on  the  terms  offered  before 
•ithdrawal.1    And  in  construing  the  language  of  a  let- 
Ting  that  the  senders  were  "authorized  to  offer" 
ds  at  certain  terms,  and  a  telegraphic  reply  thereto, 
vliich  together  were  claimed  to  constitute  a  contract  of 
ile,  the  language  used  in  the  letter  was  deemed  clearly 
i  notice  in  the  nature  of  an  advertisement  or  business 
cular,  to  attract  the  attention  of  those  in  the  same 
ne  of  business  to  the  fact  that  good  bargains  in  a  speci- 
.  commodity  could  be  obtained  by  applying  to  the 
enders,2  and  not  an  offer  by  which  they  were  to  be 
ound,   if  accepted,  for  any  amount  the  persons  to 
vhom  the  letter  was  addressed  might  see  fit  to  order.3 
Quotation  or  statement  of  price.    So  a  distinction  has 
made  between  an  offer  to  sell  at  a  price  named, 


§    33  CONSENT.  42 

such  quantity  of  a  commodity  as  the  inquiring  party 
might  order,  and  a  dispatch  which  was  rather  a  quota- 
tion of  the  market  price  of  a  commodity,  or  perhaps  a 
statement  of  the  price  at  which  the  sender  held  his  own 
supply  thereof.4 

Advantage  taken  of  ambiguity.  Where  a  proposition 
to  sell  goods  is  sent  by  a  writing  that  by  mistake  is  am- 
biguous, and  the  receiver  of  the  goods,  knowing  of  such 
ambiguity,  but  claiming  an  improbable  meaning  un- 
reasonably favorable  to  himself,  and  not  intended  by 
the  sender  or  thought  of  by  him,  orders,  obtains,  and 
uses  the  goods,  without  notice  to  the  sender,  or  inquiry 
of  him  as  to  his  intended  meaning,  such  receiver  of  the 
goods  is  liable  for  their  value,  as  if  no  proposition  had 
been  sent.5 

1  Schenectady  Stove  Co.  v.  Holbrook,  4  X.  E.  Hep.  (X.  Y.)  4. 

2  Moulton  v.  Kershaw,  59  Wis.  316 ;  48  Am.  Rep.  51fi,  518,  519. 

3  Moulton  v.  Kersliaw,  59  Wis.  316 ;  48  Am.  Rep.  516,519.    Citing 
Beaupre  v.  Pac.  ete.  Tel.  Co.  21  Minn.  155  ;   Kinghorne  ?•.  Montreal 
Tel.  Co.  18  Up.  Can.  Q.  B.  60.    Distinguishing  Keller  r.  Ybarru,  3  Cal. 
147. 

4  Beaupre  ?'.  Pac.  etc.  Tel.  Co.  21  Minn.  155.    Stated  in  note  to 
Moulton  ?-.  Kershaw,  48  Am.  Rep.  519.    And  a  county  dispatch  was 
held  not  an  acceptance  of  au  offer,  but  as  itself  merely  au  offer  or 
order  for  goods :  See  Moulton  v.  Kershaw,  59  Wis.  316;  48  Am.  Rep.  519. 

5  Butler  v.  Moses,  43  Ohio  St.  166, 169, 170. 

§  33.  Correspondence  of  acceptance  with  offer.  —  Scope  of 
requirement.  The  parties  to  a  contract  of  sale  must  as- 
sent to  the  same  thing  in  the  same  sense.1  The  assent 
must  comprehend  the  whole  of  the  proposition,2  and 
the  acceptance  must  be  exactly  equal  to  the  extent  and 
provisions  of  the  offer,  and  must  not  qualify  them  by 
any  new  matter/  For  an  acceptance  to  be  good  must 
conclude  an  agreement  or  contract  between  the  parties, 
and  to  do  this  it  must  in  every  respect  meet  and  cor- 
respond with  the  offer.4 

Variation  from  offer.  If  the  answer,  either  in  words 
or  effect,  departs  from  the  proposition,  or  varies  the 


43  CONSENT.  §   33 

terms  of  the  offer,  or  substitutes  for  the  contract  ten- 
dered are  more  satisfactory  to  the  responding  party, 
there  is  no  assent  and  no  contract.5  Thus,  there  is  not 
an  acceptance  of  an  offer  so  as  to  conclude  a  contract  be- 
tween the  parties,  if  less  goods  are  sent  than  are  or- 
dered;6 or  where  there  is  an  addition  of  another  term 
not  yet  provided  for  ;7  or  where  a  condition  is  inserted 
in  the  acceptance,8  such  as  the  payment  of  a  commis- 
sion.9 But  the  acceptance  must  be  direct,  uncondi- 
tional, arid  unqualified,10  and  must  not,  after  agreeing 
to  take  the  property  offered  for  sale,  require  that  pro- 
vision be  made  for  the  removal  of  an  attachment 
thereon.11  So  under  the  principle  that  an  acceptance 
must  be  in  the  words  of  an  offer,  or  must  be  entirely 
accordant  with  the  terms  and  conditions  thereof,  to 
bind  a  party  who  makes  the  proposition,12  there  is  a 
variance  from  an  offer  to  sell  malt  "delivered"  on  a 
boat,  by  an  acceptance  agreeing  to  take  the  malt  "  de- 
liverable "  on  the  boat ; 13  and  an  offer  by  letter  to  buy  a 
mare  if  warranted  "  sound  and  quiet  in  harness,"  is  not 
met  by  a  reply  stating  that  the  animal  is  warranted 
"  sound  and  quiet  in  double  harness  "  ; u  arid  an  offer  of 
"good  barley"  is  not  sufficiently  accepted  where  the 
reply,  in  assenting  to  the  proposal,  expresses  an  expec- 
tation that  the  sellers  will  give  "  fine  barley  arid  full 
weight."15 

Place  to  which  answer  to  be  sent.  Where  the  place  to 
which  the  answer  is  to  be  sent,  as  indicated  by  the  mode 
of  conveyance  mentioned,  constitutes  an  essential  part 
of  an  offer  to  buy  goods,  an  acceptance  communicated 
at  a  different  place  is  not  binding  upon  the  proposers.16 

Immaterial  addition.  But  an  immaterial  addition  to 
an  acceptance  does  not  prevent  the  taking  effect  of  the 
contract,17  as  where  a  hope  is  expressed  that  the  buyer 
of  hay  will  pay  a  greater  price  for  it  when  hauled;18  or 


§  33  CONSENT.  44 

that  possession  of  premises  will  be  given  by  a  certain 
clay;19  or  where  arrangements  are  suggested  for  the 
drawing  up  of  a  more  formal  contract.20 

1  Rummers  r.  Mills,  21  Tex.  77,  86,  87.    And  see  1  Parsons  on  Con- 
tracts, 475  ;  Hazard  r.  N.  E.  Marine  Ins.  Co.  1  Sum.  218,  225  ;  Hutch e- 
sou  r.  Blakeman,  3  Met.  (Ky.)  80,  81,  84  ;  Butler  v.  Moses,  43  Ohio  St. 
166,  171. 

2  See  citations  in  next  note. 

3  1  Parsons  on  Contracts,  476  ;  Summers  v.  Mills,  21  Tex.  77,  87  ; 
Hutcheson  r.  Blakeman,  3  Met.  80,  81. 

4  Potts  r.  Whitehead,  23  N.  J.  Eq.  512,  514.    Neither  falling  within 
nor  going  beyond  the  terms  proposed,  but  exactly  meeting  them  at 
all  points,  and  closing  with  them  just  as  they  stand  :    Potts  ,-.  White- 
head,  2.J  X.  J.  Eq.  512,  514  ;  quoted,  Fox  v.  Turner,  1  111.  App.  153,  159. 

5  Summers?1.  Mills,  21  Tex.  77, 87.    And  see  1  Parsons  on  Contracts, 
477  ;  JTutcheso'i  r.  Blakeman,  3  Met.  (Ky.)80.8l ;  Wynne's  Case,  Law 
R.  8  Ch.  Cas.  1C02. 

6  Bruce  r.  Pearson,  3  Johns.  534. 

7  Potts  v.  Whitehead,  23  N.  J.  Eq.  512,  514.    And  see  Honeyman  v. 
Marryatt,  6  II.  L.  Cas.  112  ;  Holland  v.  Eyre,  2  Sim.  &  St.  104,  195  ; 
Duke  r.  Andrews,  2  Ex.  290,  2<>6  ;  Chaplin  v.  Clarke,  4  Ex.  403,  409  ; 
Beck's  Case,  Law  R.  9  Ch.  Cas.  3J2. 

8  See  Wontner  r.  Shairp,  4  Com.  B.  404, 441 ;  Crossley  v.  Muncock, 
Law.  11.  13  Eq.  ISO,  1S1. 

9  Harlow  ??.  Curtis,  120  Mass.  320,  322.    Conditions  of  small  import- 
ance may  prevent  consummation  of  contract  by  correspondence  : 
Merriam  v.  Lapsley,  2  McCrary,  606,  607.    And  see  Maclay  v.  Harvey, 
90  111.  525  ;  32  Am.  Rep.  35,  38. 

10  Hutcheson  v.  Blakeman,  3  Met.  (Ky.)  80, 82.    And  see  Eliason  t'. 
Henshaw.  4  Wheat.  225  ;  1  Langdell's  Cases  on   Contracts,  70,  71 ; 
Tayloe  v.  Merchants'  Fire  Ins.  Co.  9  How.  3'JO  ;  1  Langdell's  Cases  on 
Contracts,  106, 109  ;  Baker  r.  Holt,  56  Wis.  100,  103;  Clay  r.  Ricketts, 
23  N.  W.  Rep.  (Iowa)  755  ;  Corcoran  v  White,  7  N.  E.  Rep.  (111.)  525. 
Compare  Stanley  v.  Dowdeswell,  Law  R.  10  Com.  P.  102. 

11  Hutcheson  r,  Blakeman,  3  Met.  (Ky.)  80,  83. 

12  See  preceding  portions  of  section. 

13  Myers  r.  Smith,  48  Barb.  614,  634. 

14  Jordan  r.  Norton,  4  Mees.  W.  155, 161. 

15  Hutchison  r.  Bowker,  5  Mees.  &  W.  535,  540,  541.    IMscrepany 
between  letters  on  the  one  side  mentioning  "first  quality  Jefferson 
County  barley,"  and  then  on  the  other  speaking  of  "  two-rowed  bar- 
1  \v  "  : '  Vassar  v.  Camp,  11  N.  Y.  441 ;  1  Langdell's  Cases  on  Contracts, 
110, 113. 

IS    Eliason  r.  Henshaw,  4  Wheat.  225  ;  1  Langdell's  Cases  on  Con- 
tracts, 70,  72. 

17  Soe  citations  in  succeeding   notes.    And  compare  Proprs.  v. 
Arduin,  Law  R.  5  Eng.  &  Ir.  App.  64. 

18  Phillips  r.  Moore,  71  Me.  78,  7>. 

19  See  Clive  v.  Beaumont,  1  De  Gex  &  S.  397, 403. 

20  Branson  r.  Stannard,  41  L.  T.  N.  S.  434,  435.    And  see  Gibbons 
v.  Board  etc.  11  Beav.  1  ;  Bomiewel!  v.  Jenkins,  38  L.  T.  N.  S.  581,  582. 


45  CONSENT.  §   34 

g  34.  Applications  of  requirement.  —  Illustrations  of 
want  of  correspondence,  etc.  The  doctrine  that  the  ac- 
ceptance must  be  unconditional  and  unqualified  so  as  to 
correspond  with  the  offer,  has  been  applied  to  allotments 
of  shares,1  and  to  goods  sent  in  less  quantity  and  at 
shorter  credit  than  ordered  : 2  to  an  acceptance  qualified 
both  as  to  the  quality  of  goods  and  as  to  the  time  of  their 
delivery,3  or  which  introduces  a  new  term  by  requiring 
an  article  to  be  of  a  particular  quality  ; 4  to  an  answer 
involving  a  wide  departure  from  the  terms  of  a  letter 
making  a  proposition,5  and  to  a  letter  modifying  and  re- 
submitting  the  original  proposition ; 6  to  a  case  where 
one  party  offered  goods  delivered  at  the  city  where  lie 
resided,  at  a  specified  price  per  bushel,  and  the  other 
sent  the  goods,  stating  that  he  would  expect  the  highest 
market  price  ; 7  and  to  a  suggested  sale  of  a  partnership 
interest,  where  there  is  not  an  entire  agreement  between 
the  proposal  and  acceptance  in  regard  to  the  subject- 
matter  and  the  extent  of  the  interest  to  be  transferred.8 

When  no  agreement.  So  there  is  deemed  to  be  110 
agreement  if  there  are  any  essential  matters  affecting 
the  rights  of  the  parties  left  open  for  further  consider- 
ation ;9  or  where  a  proviso  in  the  offer,  that  the  security 
be  satisfactory,  is  not  complied  with.10  And  in  reply  to 
a  letter  offering  to  sell  two  hundred  boxes  of  cheese  at  a 
given  price,  and  to  deliver  them  at  a  place  designated, 
uone  hundred  now,  and  one  hundred  about  the  middle 
of  October  next, "  a  letter  accepting  the  offer  as  to 
amount  and  price,  and  place  of  delivery,  but  not  as  to 
time  of  delivery,  is  not  an  unconditional  acceptance  of 
the  offer,  so  as  to  effect  a  contract.11 

Charging  goods,  etc.  Where  in  reply  to  a  proposition, 
asking  parties  to  guarantee  the  payment  of  a  bill  of  lum- 
ber to  be  sold  to  a  third  party,  the  firm  addressed  answers 
that  the  lumber,  when  sold,  might  be  charged  to  it,12 


§    35  CONSENT.  46 

this  is  not  an  acceptance  but  a  counter -proposition,1'  and 
no  contract  is  consummated  if  there  is  no  express  assent 
thereto,  and  if  the  goods  are  charged  to  the  third  party 
instead  of  to  the  firm  addressed.1* 

1  Oriental  etc.  Co.  v.  Briggs,  4  De  Gex,  F.  &  J.  191, 196. 

2  Bruce  v.  Pearson,  3  Johns.  534,  535. 

3  Carter  r.  Bingham,  32  Up.  Can.  Q.  B.  615,  617,  619.    Unmeaning 
acceptance  :   KingSorne  v.  Montreal  Tel.  Co.  18  Up.  Can.  Q.  B.  60,  GJ. 

4  Mclntosh  v.  Brill  20  Up.  Can.  C.  P.  426     But  the  words,  "  send 
directions  about  shipping,"  have  been  held  not  to  qualify  a  previous 
unconditional  acceptance:  Marshall  v.  Jumieson,  ±1  Up.  Can.  Q.  15. 
115,  1J2,  1J4.     "Order  cars"  similarly  construed  :   Murphy  ?'.  Thomp- 
son, 23  Up.  Can.  C.  P.  23.J,  237.    "  At  owner's  risk  of  delay,"  as  prevent- 
ing binding  contract :   Willing  v.  Caiae,  3,5  Up.  Can.  Q.  B.  46. 

5  Snow  v.  Miles,  3  Cliff.  COS,  613. 

6  Solomon  v.  Webster,  4  Cal.  353,  361. 

7  Plant  Seed  Co.  v.  Hall,  14  Kan.  553,  555. 

8  Eggleston  v.  Wagner,  43  Mich.  610  ;  Wagner  v.  Eggleston,  49 
Mich.  218. 

9  Sourwine  v.  Sourwine,  17  Hun,  432. 

10  McGrath  v.  Brown,  C6  Barb.  4S1. 

11  Johnson  r.  Stephenson,  20  Mich.  63. 

12  Compare  Usberrotli  v.  lliegel,  71  Pa.  St.  280,  28L 

13  See  \  29,  on  COXSKXT  ix  GKXKHAL.  • 

14  Smith  v.  Wetherell,  4  111.  App.  6-35,  659. 

§  35.  Time  for  acceptance.  —  Offer  giving*  An  offer 
granting  time  for  acceptance,  while  in  force  and  un re- 
voked, is  a  continuing  oii'or  during  the  time  limited  for 
acceptance  ; l  but  as  soon  as  it  is  accepted  it  ceases  to  be 
an  offer  merely,  and  through  the  assent  of  the  parties 
ripens  into  a  binding  and  complete  contract,  since  the 
acceptance  by  the  one  party  constitutes  a  sufficient 
legal  consideration  for  the  engagement  on  the  part  of 
the  other.2 

Reasonable  time  where  none  fixed.  An  offer  to  make  a 
sale  which  fixes  no  time  within  which  it  shall  be  ac- 
cepted, must  be  accepted  within  a  reasonable  time.3 
Thus,  if  a  proposition  is  made  at  a  personal  interview, 
and  the  other  party  is  told  that  he  need  not  give  a 
decided  answer  then,  but  might  do  so  thereafter,  he 


47  CONSENT.  g  35 

must  notify  his  acceptance  within  a  reasonable  time.4 
So,  a  proposition  or  offer  made  by  letter  which  is  not 
replied  to  within  a  reasonable  time,  cannot  be  con- 
sidered as  a  contract.5 

Retention  of  chattel.  If  a  chattel  be  delivered  by  one 
person  to  another  on  trial  with  a  view  to  a  sale,  and  the 
latter  retains  the  chattel  for  an  unreasonable  time,  the 
former  may  regard  the  transaction  as  a  sale  and  recover 
the  price.6  So  on  an  exchange  of  horses  with  the 
privilege  to  one  of  the  parties  to  return,  within  a  given 
time,  the  horse  received  by  him,  the  contract  becomes 
absolute  if  such  party  fails  within  the  time  to  return 
the  horse  so  received.7  And  it  is  a  general  principle 
applicable  to  all  personal  property,  that  where  goods 
are  delivered  on  sale  or  return,  they  must  be  returned 
in  a  reasonable  time,  or  the  sale  becomes  absolute.8 

Mailing  acceptance.  To  constitute  a  valid  contract  by 
letter,  if  no  time  for  acceptance  of  the  offer  is  fixed,  it 
must  be  affirmatively  shown  that  the  acceptance  was 
mailed  within  a  reasonable  time  and  before  any  intima- 
tion of  withdrawal  was  received.9  And  a  milliner  is 
under  no  obligation  to  regard  a  contract  as  closed, 
where  he,  by  letter  sent  through  the  mail,  offered  to 
employ  a  party,  stating  terms,  and  asking  for  a  reply 
by  next  mail,  and  the  party  addressed,  on  the  next  day 
after  receiving  the  letter,  gave  a  postal  card,  accepting 
the  offer,  to  a  boy  to  be  mailed,  but  he  neglected  to 
mail  it  until  the  third  day  after  it  was  intrusted  to 
him.10  So,  where  in  a  letter  offering  to  sell  land  it  was 
said:  "This  is  my  offer,  if  you  want  it  now;  I  would 
not  agree  to  keep  the  offer  good  a  great  while,"  it  was 
questioned  whether  a  letter  of  acceptance  was  in  time, 
if  mailed  nine  or  ten  days  after  the  receipt  of  the  offer.11 

Notice  of  retraction  of  offer  for  delay.  But  though  an 
offer  to  be  binding  upon  the  party  making  it  must  be 


?  36  CONSENT.  48 

accepted  within  a  reasonable  time,12  yet  it  has  been 
held  that  if  the  party  to  whom  it  is  made  makes 
known  his  acceptance  of  it  to  the  party  making  it, 
within  any  period  which  he  could  fairly  have  supposed 
to  be  reasonable,  good  faith  requires  the  maker,  if  lie 
intends  to  retract  on  account  of  the  delay,  to  make 
known  that  intention  promptly.13 

1  Boston  etc.  R.  R.  v.  Bartlett,  3  Cush.  224  ;  1  Langdell's  Cases  on 
Contracts,  103,  105. 

2  Boston  etc.  R.  R.  v.  Bartlett,  3  Cush.  224  ;  1  Langdell's  Cases  on 
Contracts,  103,  105.    It  is  precisely  as  if  the  parties  had  met  at  the 
time  of  the  acceptance,  and  the  offer  had   been  then  made  and 
accepted,  and  the  bargain  completed  at  once  :  1  Langdell's  Cases  on 
Contracts,  103, 105. 

3  See  Craig  v.  Harper,  3  Cush.  158, 160  ;  Averill  v.  Hedge,  12  Conn. 
424;  1  Langdell's  Cases  on  Contracts,  W.    So  of  rewards:   Loring  v. 
City  of  Boston,  7  Met.  400,  412,  413  ;  1  Langdell's  Cases  on  Contracts, 
91).    Four  months  held  not  a  reasonable  time:  Chicago  etc.  N.  N.  Co. 
v.  Dane,  43  N.  Y.  240,  243. 

4  See  Beck  with  v.  Cheever,  21  N.  H.  41,  43,  44. 

5  See  Martin  v.  Black,  21  Ala.  721,  729. 

6  Washington  v.  Johnson,  7  Humph.  468,  469. 

7  Johnson  v.  McLane,  7  Blackf.  501,  504. 

8  Washington  r.  Jqhns9n,  7  Humph.  468,  469.    What  is  a  reason- 
able or  unreasonable  time  in  such  cases  is  a  question  of  fact  for  the 
jury,  and  must  depend  in  a  great  degree  upon  the  nature  of  the 
property  :  Washington  v.  Johnson,  7  Humph.  468,  46J. 

9  Ferrier  v.  Storer,  63  Iowa,  484  ;  50  Am.  Rep.  752,  755,  756. 

10  Maclay  v.  Harvey,  90  111.  525 ;  32  Am.  Rep.  35.    Stipulation  for 
answer    by' return  mail:    See  argument  in  Uunlop  v.  Higgins,  1 
H.  L.  Cas.  381,  387 ;  Taylor  v.  Rennie,  35  Barb.  272,  276. 

11  Baker  v.  Holt,  56  \Vis.  100, 104. 

12  Phillips  v.  Moore,  71  Me.  78,  80.    And  see  Peru  v.  Turner,  10  Me. 
185 ;  also  preceding  portion  of  section. 

13  Phillips  v.  Moore,  71  Me.  78,  80. 

£  36.  Limiting  time  for  acceptance.  —  Illustration.  A 
paper  signed  by  a  party,  by  which  he  agrees  that 
another,  in  consideration  of  one  dollar  paid,  shall  have 
for  thirty  days  the  refusal  of  certain  land  therein 
designated,  and  that  he  will  convey  the  same  in  con- 
sideration of  a  specified  sum  per  acre,  a  certain  amount 
to  be  paid  on  the  execution  of  the  deed,  and  the  balance 
in  a  mortgage  on  the  land,  with  interest  at  a  designated 


49  CONSENT.  I  37 

rate,  no  time  being  named  for  delivering  the  deed,  nor 
any  time  for  which  the  mortgage  shall  run,  is  not  a 
contract,  but  only  a  refusal,1  or  offer  of  the  lands  at  a 
certain  price,2  and  could  not  be  converted  into  a  con- 
tract unless  accepted  within  the  thirty  days.3 

General  rule.  And  in  general,  when  an  offer  is  made 
for  a  time  limited  in  the  offer  itself,  no  acceptance  after- 
wards4 will  make  it  binding.5 

1  See  §  29,  on  CONSENT  IN  GENERAL. 

2  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  57. 

3  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  57. 

4  See  \  35,  on  TIME  FOB  ACCEPTANCE. 

5  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  57.    For  any  offer  without 
consideration  may  be  withdrawn  at  any  time  before  acceptance  : 
Potts  v.  Whitehead,  20  N.  J.  Eq.  55, 57.    And  an  offer  which  in  its  terms 
limits  the  time  of  acceptance  is  withdrawn  by  the  expiration  of  the 
time,  which  cannot  be  extended  without  the  consent  of  the  person 
making  the  offer :  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  57. 

\  37.  Modes  of  acceptance.  —  Sending  letter.  Where  the 
offer  is  by  letter,  the  usual  mode  of  acceptance  is  by  the 
sending  of  a  letter  announcing  a  consent  to  accept.1 

Through  messenger.  And  where  the  offer  is  made  by  a 
messenger,  a  determination  to  accept,  returned  through 
him  or  sent  by  another,  would  seem  to  be  all  the  law 
requires,  if  the  contract  may  be  consummated  without 
writing.2 

Other  modes.  But  there  are  other  modes  which  are 
equally  conclusive  upon  the  parties ; 3  even  keeping 
silence  under  certain  circumstances  is  an  assent  to  a 
proposition  ; 4  and  anything  that  shall  amount  to  a  mani- 
festation of  a  formed  determination  to  accept,  communi- 
cated or  put  in  a  proper  way  to  be  communicated  to  the 
party  making  the  offer,  would  doubtless  complete  the 
contract.5  Thus,  it  is  said  that  the  overt  act  may  be  as 
various  as  the  form  and  nature  of  contracts  ; 6  and  it  may 
be  by  fall  of  the  hammer,  by  words  spoken,  by  letter, 
by  telegraph.7  If  one  holds  his  property  out  for  sale, 
naming  the  terms,  and  another  accepts  the  terms,  the 
NEWMAKK  SALES. —  6. 


§   37  CONSENT.  50 

contract  is  complete  ;  or  if  one  bids  at  an  auction,  and 
the  hammer  falls,  the  contract  is  complete ;  or  if  one 
advertises,  offering  a  reward  for  something  to  be  done, 
as  soon  as  the  thing  is  done  the  contract  is  complete, 
and  the  reward  is  due.8 

Compliance  with  proposition.  And  in  general,  compli- 
ance with  a  proposition,  especially  where  no  notice  of 
acceptance  is  required,  is  the  most  significant  evidence 
of  its  acceptance.9 

Uncommunciated  intention.  But  an  intention  to  accept 
a  proposition  is  not  an  acceptance,  unless  communicated 
to  the  party  making  it.10 

Addressing  letter.  An  acceptance  of  an  offer  in  writ- 
ing to  convey  land  within  a  certain  time,  in  consideration 
of  a  price  named,  may  be  communicated  by  mail,  but  it 
must  be  actually  placed  in  the  postoffice,  directed  to 
the  proper  place  ; n  and  if  directed  to  a  place  where  the 
party  to  be  bound  by  it  only  sometimes  resorts,  it  must 
be  proved  to  have  been  received.12 

1  Mactier  v.  Frith,  6  Wend.  103 ;  21  Am.  Dec.  262,  272 ;  Langdell's 
Cases  on  Contracts,  77.    And  see  Hallock  v.  Ins.  Co.  2  Dutch.  268, 281, 
282  ;  affirmed,  3  Dutch.  645 ;  72  Am.  Dec.  379. 

2  Trevor  v.  Wood,  3fi  N.  J.  307,  310 ;  quoting  Mactier  v.  Frith,  21 
Am.  Dec.  262,  272  ;  1  Laugdell's  Cases  on  Contracts,  77. 

3  See  citations  in  last  note.    Contracts  by  telegraph :  See  §  43. 

4  See  1  Parsons  on  Contracts,  476.    Implied  agreement  to  pay 
value  of  wares  taken  up  from  a  tradesman's  counter  :  2  Blackst.  Com. 
443  ;  Hoadly  v.  McLaiue,  10  Biug.  4s2,  487. 

5  Mactier  v.  Frith,  6  Wend.  103  ;  21  Am.  Dec.  262,  272 ;  1  Langdell's 
Cases  on  Contracts,  77  ;  as  quoted,  Trevor  v.  Wood,  SON.  Y.  307, 310. 
And  see  Abbott  v.  Shephard,  4  N.  H.  14, 17. 

6  Hallock  v.  Ins.  Co.  2  Dutch.  268,  281 ;  affirmed,  3  Dutch.  645  ;  72 
Am.  Dec.  379. 

7  Hallock  v.  Ins.  Co.  2  Dutch.  268,  281 ;  quoted,  Ferrier  v.  Stover, 
63  Iowa,  4b4,  488  ;  50  Am.  Hep.  752.  754. 

8  Crook  v.  Cowan,  64  N.  C.  743,  746. 

9  Fatten  v.  Hassinger,  69  Pa.  St.  311, 314.    See  §  38,  on  ACCEPTANCE 
BY  ACTS. 

10  Jenness  v.  Iron  Co.  53  Me.  20. 23.    And  see  McDonald  v.  Boeing, 
,  43  Mich.  394,  396;  Shupe  v.  Gal-braith,  32  Pa.  St.  10, 11 ;  McCulloch  v. 

Eagle  Ins.  Co.  1  Pick.  278  ;  1  LandgeLTs  Cases  on  Contracts.  72. 

11  Potts  v.  Whitehead,  20  N.  J.  Eq.  55, 50. 

12  Potts  v.  Whitehead,  20  N.  J.  Eq.  55,  59,  60. 


51  CONSENT.  §   38 

\  38.  Acceptance  by  acts.  —  Sending  goods  as  proposed. 
A  mere  mental  assent  to  the  terms  stated  in  a  proposed 
contract  would  not  be  binding ; J  but  acting  upon  those 
terms  by  sending  goods  in  the  quantities  and  at  the 
prices  mentioned  in  it,  amounts  to  sufficient  to  show  the 
adoption  of  the  writing  previously  altered  and  sent,  and 
to  constitute  a  valid  contract.2 

Acts  of  acquiescence,  etc.  So  where  a  contract  be- 
tween a  railroad  company  and  a  telegraph  company  was 
reduced  to  writing  and  signed  by  the  telegraph  com- 
pany, and  a  copy  thereof,  sent  to  the  railway  company, 
was  accepted  by  letter  of  its  agent,  except  as  to  ono 
matter  which  was  acceded  to  by  the  former  company, 
and  under  this  arrangement  the  telegraph  company 
made  large  expenditures,  and  each  of  the  companies  for 
a  long  time  acted  upon  the  terms  of  the  contract,  it  was 
held  that  by  the  acts  of  acquiescence,  adoption,  and 
recognition  by  the  railroad  company  of  the  terms  of  the 
contract,  it  was  binding  on  the  latter,3  although  such 
company  did  not  formally  execute  the  same.4 

Written  proposition  and  prior  veroal  offers.  Nor  can 
a  party  accept  a  part  only  of  a  written  proposition  for  a 
contract,  and  at  the  same  time  rely  on  a  portion  of  the 
antecedent  verbal  offers ; 5  and  if  such  party  acts  under 
a  written  proposal,  and  avails  himself  of  all  the  rights 
and  privileges  it  confers,  this  will  show  an  acceptance.6 

Compliance  with  order  for  goods.  If  one  send  by  mail 
an  absolute  and  specific  order  for  certain  goods  to  a 
merchant  who  sells  such  goods,  the  latter  need  riot  reply 
by  mail  engaging  to  send  them,  but  the  contract  will  be 
complete  upon  his  at  once  complying  with  the  order.7 

1  Brogden  v.  Metrop.  By.  Co.  2  App.  Gas.  666,  688,  691.    But  any 
appropriate  act  of  assent  of  a  binding  character  is  as  good  as  a 
formal  letter  of  acceptance  :  Lungstrass  v.  German  Ins.  Co.  48  Mo.  201, 
203. 

2  Brogden  v.  Metrop.  Ky.  Co.  2  App.  Cas.  666. 

3  West.  Union  Tel.  Co.  v.  Chicago  etc.  B.  B.  Co,  86  111,  446, 


?  39  CONSENT.  52 

4  West.  Union  Tel.  Co.  v.  Chicago  etc.  K.  B.  Co.  86  111.  246.  2-51,  252. 
Facts  held  sufficient  to  show  an  acquiescence  by  buyers  in  a  change 
of  the  contract  of  sale  as  to  time  of  delivery,  and  to  bind  them  to 
accept  the  remainder  of  the  goods  according  to  it:  Tilt  v.  La  Salle 
Manuf.  Co.  5  Daly,  19. 

5  Pickrel  v.  Rose,  87  111.  263, 265. 

6  Pickrel  r.  Hose,  87  111.  263,  ! 

7  Crook  t\  Cowan,  64  X.  C.  743,  747, 74& 

§  33.  Contract  by  lotter.  —  Mailing  acceptance  binds 
bargain.  Where  a  proposition  of  sale  is  made  by  letter 
through  the  mail,  the  mailing  of  the  acceptance,  accord- 
ing to  the  weight  of  authority,  closes  the  contract,1  and 
the  party  making  the  proposition  cannot  retract  after 
the  acceptance  by  his  correspondent  has  been  depos- 
ited in  the  postoffice.2  Xor  can  the  party  accepting 
retract  his  acceptance  after  posting  his  letter.3 

Ground  of  doctrine.  The  principle  said  to  be  estab- 
lished as  governing  the  subject  is  that  in  order  to  con- 
stitute a  binding  acceptance,  it  is  only  necessary  that 
there  should  be  a  concurrence  of  the  minds  of  the 
parties  upon  a  distinct  proposition  manifested  by  an 
overt  act  ;4  and  that  the  sending  of  a  letter  announcing 
a  consent  to  the  proposal  is  a  sufficient  manifestation, 
and  consummates  the  contract  from  the  time  it  is  sent.5 

Delay  or  failure  in  receipt  of  acceptance.  And  where 
the  offer  is  made  by  letter,  the  contract  is  complete,  if 
the  acceptance  is  mailed  within  a  reasonable  time,6 
although  the  acceptance  may  be  delayed,  or  may  not 
be  received  at  all,  owing  to  the  fault  of  the  post.7 

Delay  in  delivery  of  offer  or  acceptance.  If  the  deliv- 
ery of  the  letter  containing  the  offer  is  delayed  by  the 
fault  of  the  sender,  the  period  for  posting  acceptance  is 
extended  until  the  arrival  of  the  proposal;8  and  this 
was  held  where  the  letter  making  an  offer  to  sell  goods 
was  misdirected  by  the  sender's  fault,  and  was  conse- 
quently delayed  two  days  in  transmission,  and  before 
receipt  of  the  acceptance  the  sender  of  the  offer  sold  the 


53  CONSENT.  §  39 

goods  to  a  third  person.9  But  if  undue  delay  in  the  de- 
livery of  the  letter  of  acceptance  is  caused  by  the  fault 
of  the  accepting  party,  there  is  no  contract ; 10  so  that 
where  the  accepting  party  put  his  letter  into  the  hands 
of  an  agent,  the  contract  is  not  concluded  so  long  as  the 
letter  remains  in  the  agent's  hands,  even  if  the  agent  is 
the  postmaster.11 

Intervention  of  friend  or  agent.  A  proposition  to  sell, 
contained  in  a  letter  sent  by  mail  to  the  writer's  agent 
or  friend,  with  request  to  communicate  it,  may,  after 
communication  to  the  person  for  whom  it  was  intended, 
be  accepted  by  a  written  reply  from  the  latter,  ad- 
dressed directly  to  the  maker  of  the  proposition  ; u  and 
in  such  case  sending  the  reply  to  the  postoffice  through 
the  same  agent  or  friend,  first  permitting  him  to  read 
it,  and  telling  him  orally  that  the  proposition  is  ac- 
cepted, will  not  prevent  the  contract  from  being  one 
made  by  letter ; 13  and  the  contract  will  be  closed,  not 
from  the  time  of  leaving  the  reply  to  be  carried  to  the 
postoffice,u  but  from  the  time  of  its  delivery  into  the 
postoffice.15 

1  See  cases  next  cited. 

2  Adams  v.  Lindsell,  1  Barn.  &  Aid.  681;  1  Langdell's  Cases  on 
Contract,  4  ;  Dunlop  v.  Higgins,  1  H.  L.  Cas.  381 ;  1  Langdell's  Cases 
on  Contracts,  21 ;  Wheat  v.  Cross,  31  Md.  99  ;  1  Am.  Hep.  28,  29  ;  Mac- 
tier  v.  Frith,  6  Wend.  103 ;  21  Am.  Dec.  262  ;   1  Langdell's  Cases  on 
Contracts,  77  ;  Vassar  v.  Camp,  11  N.  Y.  441 ;  1  Langdell's  Cases  on 
Contracts,  110  ;  Byrne  v.  Van  Tienhoven,  Law  R.  5  C.  P.  D.  344  ;  30 
Eng.  liep.  133.    And  see  Tayloe  v.  Merchants'  Fire  Ins.  Co.  9  How. 
390  ;  1  Langdell's  Cases  on  Contracts,  106  ;  Harris'  Case,  Law  R.  7  Ch. 
App.  537  ;  1  Langdell's  Cases  on  Contracts,  54  ;  3  Eng.  Rep.  529  ;  Ab- 
bott v.  Shepard,48  N.  H.  14,  16;  Ferrier  v.  Stover,  63  Iowa,  484  ;  50 
Am.  Rep.  752,  7-">4 ;  Household  Fire  Ins.  Co.  v.  Grant,  Law  R.  4  Ex. 
D.  210  ;  31  Eng.  Rep.  466.    And  compare  Lewis  ?'.  Browning,  130  Mass. 
173,  175 ;  Haas  v.  Myers,  111  111.  421 ;  53  Am.  Rep.  634,  635.    But  see 
contra,  McCulloch  v.  Eagle  Ins.  Co.  1  Pick.  278  ;  1  Langdell's  Cases  on 
Contract,  72  ;  2  Langdell's  Cases  on  Contracts,  993,  994  ;  7  Am.  Law 
Rev.  433.     Consult   further,  2   Kent   Com.  (12th  ed.)  652;  note  to 
Maclay  v.  Harvey,  32  Am.  Rep.  40. 

3  See  cases  cited  in  last  note.    But  compare  Countess  of  Dunmore 
v.  Alexander,  9  fehaw  &  D.  190  ;  1  Langdell's  Cases  on  Contracts,  121. 
So  of  other  contracts  besides  those  of  sale :  Coml.  Ins.  Co.  v.  Hal- 
lock,  2  Dutch.  268 ;  3  Dutch.  645  ;  72  Am.  Dec.  379,  n.  380. 


§  40  CONSENT.  54 

4  Vassar  i».  Camp,  11  N.  Y.  441 ;  1  Langdell's  Cases  on  Contracts, 
110, 116, 117.    And  see  Mactier  v.  Frith,  6  Wend.  103  ;  21  Am.  Dec.  262  ; 
1  Langdell's  Cases  on  Contracts,  77. 

5  Trevor  v.  Wood,  36  N.  Y.  307, 309  ;  Vassar  v.  Camp,  11 N.  Y.  441 ;  1 
Langdell's  Cases  on  Contracts,  110, 116, 117.    And  see  Mactier  v.  Frith, 
6  Wend.  103 ;   21  Am.  Dec.  262  ;  1  Langdell's  Cases  on  Contracts,  77. 
Putting  in  the  mail  the  answer  by  letter  containing  the  acceptance, 
and  thus  placing  it  beyond  the  control  of  the  party,  is  valid  as  a  con- 
structive notice  of  acceptance  :  2  Kent  Com.  477. 

6  See  \  35,  on  TIME  FOB  ACCEPTANCE. 

7  See  Household  Fire  Ins.  Co.  v.  Grant,  Law  R.  4  Ex.  D.  216 ;  31 
Eng.  Rep.  466 ;  note  to  Maclay  v.  Harvey  (90  111.  525) ;  32  Am.  Rep.  40 ; 
Dunlop  v.  Higgins,  1  H.  L.  Cas.  381 ;  1  Langdell's  Cases  on  Contracts, 
21,  30 ;  and  other  cases  cited  in  first  paragraph  of  section.    Compare 
Howard  v.  Daly,  61  N.  Y.  362,  365,  366. 

8  Adams  v.  Lindsell,  1  Barn.  &  Aid.  681 ;  1  Langdell's  Cases  on 
Contracts,  4. 

9  Adams  v.  Lindsell,  1  Barn.  &  Aid.  681;  1  Langdell's  Cases  on  Con- 
tracts, 4.    See  note  to  Maclay  v.  Harvey  (90  111.  525) ;  32  Am.  Rep.  50, 
51. 

10  See  citations  in  next  note. 

11  Thayer  v.  Middlesex  etc.  Ins.  Co.  10  Pick.  326.    As  stated  in  note 
to  Maclay  v.  Harvey  (90  111.  525) ;  32  Am.  Rep.  51. 

12  Bryant  v.  Boozer,  55  Ga.  438. 

13  Bryant  v.  Boozer,  55  G a.  438,  448. 

14  Compare  Thayer  v.  Middlesex  etc.  Ins.  Co.  10  Pick.  326. 

15  Bryant  v.  Boozer,  55  Ga.  438,  448. 

§  40 .  Construction  of  correspondence.  —  Con  tract  arising 
from  correspondence.  A  contract  need  not  be  embraced 
in  a  single  writing,  but  may  be  contained  in  letters  con- 
stituting a  correspondence  between  the  parties.1  Thus, 
it  is  a  very  common  thing  to  buy  and  sell  by  letter.2 
In  such  cases  the  correspondence  contains  the  contract, 
and  it  is  for  the  court  to  construe  the  contract  as  it  is 
extracted  from  the  correspondence.3 

Assent  to  latest  proposition.  But  it  is  an  undoubted 
rule  of  law  that  before  an  agreement  can  be  gathered 
from  a  correspondence,  it  must  appear  by  the  corre- 
spondence that  what  has  been  proposed  on  the  one  side 
has  been  definitely  agreed  to  upon  the  other,  so  that  a 
clear  and  complete  contract  can  be  derived  from  the 
letters;4  and  applying  this  rule,  a  contract  of  sale  can- 
not be  considered  as  made  until  the  latest  proposition 


55  CONSENT.  §  40 

on  the  part  of  the  one  is  assented  to  by  the  other  of  the 
parties.5 

Distinct  proposition  and  unqualified  acceptance.  So  to 
constitute  a  contract  by  correspondence  one  letter  must 
contain  a  distinct  proposition,  and  the  answer  must  be 
an  unqualified  acceptance.6  And  if  the  answer  mailed 
in  response  to  a  letter,  merely  offering  to  sell  land, 
imposes  conditions  concerning  the  execution  and  for- 
warding of  the  deed,  and  the  place  of  payment  of  the 
price,  it  does  not  amount  to  an  unqualified  acceptance 
so  as  to  preclude  the  withdrawal  of  the  offer.7  Nor  will 
a  letter,  and  a  telegram  sent  in  reply  thereto,  constitute 
a  contract,  where  the  former  is  construed  to  be  in  the 
nature  rather  of  an  advertisement  or  circular  suggesting 
good  bargains,  than  an  offer  which  might  be  accepted 
for  any  amount  of  goods  the  persons  addressed  might 
see' fit  to  order.8 

Ambiguous  document  or  letter.  Where  both  parties 
have  acted  upon  a  certain  construction  of  an  ambiguous 
document  or  letter,  that  construction,  if  in  itself  admis- 
sible, will  be  admitted  by  the  court.9 

Meaning  of  written  offer  to  sell.  And  in  ascertaining 
the  meaning  of  a  written  offer  to  sell,  all  its  parts  and 
words  should  be  examined  in  the  light  of  the  circum- 
stances, and  if  possible,  effect  given  to  each.10 

Evidence  to  show  sale.  In  an  action  for  the  price  of  a 
horse  alleged  to  have  been  sold  by  plaintiff  to  defendant, 
where  the  former,  admitting  that  he  had  sent  to  the  latter 
a  letter  containing  an  offer  to  sell  him  the  horse  for  two 
hundred  dollars,  offered  in  evidence  a  letter,  afterwards 
received  from  the  defendant  and  signed  by  him,  of  the 
tenor  following  :  "I  might  purchase  your  horse  at  two 
hundred  dollars,  the  price  you  asked.  I  would  like  to 
get  it  at  once,  if  it  will  do  me,  which  I  am  quite  certain 
it  will.  Please  reply  at  once,"  it  was  held  that  the  two 


\  41  CONSENT.  56 

letters  do  not  show  a  complete  written  contract  for  the 
sale  of  the  horse  ; n  and  that  the  one  offered  was  compe- 
tent evidence,  in  connection  with  parol  evidence  offered 
to  show  the  sale  charged.12 

1  Thames  Loan  etc.  Co.  v.  Beville,  100  Ind.  309,  314. 

2  Cheney  r.  East  Transp.  Line,  59  Md.  557,  565. 

3  Cheney  r.  East  Transp.  Line,  59  Md.  557,  5G5.    Citing  Eliason  v. 
Henshaw,  4"  Wheat.  225  ;  1  Langdell's  Cases  on  Contracts,  70  ;  Carr  v. 
Duval,  14  Peters,  77  ;  Bonnewell  v.  Jenkins,  Law  R.  8  Ch.  D.  70  ; 
Propr's  etc.  v.  Arduin,  Law  R.  5  Eng.  &  Ir.  App.  64  ;  Turner  v.  Yates, 
16  How.  23 ;  Watts  v.  Ainsworth,  1  Hurl.  &  C.  83. 

4  Darlington  Iron  Co.  v.  Foote,  16  Fed.  Rep.  646,  649. 

5  Darlington  Iron  Co.  v.  Foote,  16  Fed.  Rep.  646,  649. 

6  Baxter  ?«.  Bishop,  65  Iowa,  582,  583.    And  see  1  Parsonj  on  Con- 
tracts, 4^5 ;  Vassar  r.  Camp,  11  N.  Y.  441,  445  ;  1  Langdell's  Cases  on 
Contracts,  110,  113  ;  \  33,  on  CORRESPOXDEXCE  OF  ACCEPTANCE,  etc. 

7  Baker  v.  Holt,  56  Wis.  100,  103.    Following  Northwestern  Iron 
Co.  v.  Meade,  21  Wis.  474.    Distinguishing  Matteson  v.  Scofield,  27  Wis. 
671. 

8  Moulton  v.  Kershaw,  59  Wis.  316  ;  43  Am.  Rep.  516,  n.  519. 

9  Foster  v.  Goldschmidt,  21  Fed.  Rep.  70,  74. 

10  Butler  ?<.  Moses,  43  Ohio  St.  166.    When  such  writing  may  have 
different  meanings,  and  the  receiver  thereof,  on  inquiry  of  a  third 
person,  is  given  the  true  intent  and  meaning  of  the  sender  thereof, 
but  acts  thereon  without  further  inquiry,  and  then  seeks  to  hold 
the  sender  upon  the  writing,  such  receiver  is  bound  by  the  true  intent 
and  meaning  of  the  sender .  Butler  v.  Moses.  43  Ohio  St.  166. 

11  Stagg  v.  Compton,  81  Ind.  171, 175. 

12  Stagg  v.  Compton,  81  Ind.  171, 176. 

\  41.  Preliminary  negotiations  or  final  agreement,  —  In 
contract  by  correspondence.  A  valid  contract  may  doubt- 
less be  made  by  correspondence; l  but  care  should  always 
be  taken  not  to  construe  as  an  agreement,  letters  which 
the  parties  intended  only  as  a  preliminary  negotiation.2 

Test  question.  The  question  in  such  cases  always  is, 
did  they  mean  to  contract  by  their  correspondence,  or 
were  they  only  settling  the  terms  of  an  agreement  into 
which  they  proposed  to  enter  after  all  its  particulars 
were  adjusted,  which  was  then  to  be  formally  drawn 
up,  and  by  which  alone  they  were  to  be  bound  ?3 

Determining  circumstance.  And  the  circumstance  that 
the  parties  do  intend  a  subsequent  agreement  to  be 


57  CONSENT.  g  41 

made,  is  strong  evidence  to  show  that  they  did  not  intend 
the  previous  negotiations  to  amount  to  an  agreement.4 

Governing  principle.  The  principle  governing  cases 
of  this  character  is  said  to  be  that  if  there  is  a  simple 
acceptance  of  an  offer  to  purchase,  accompanied  by  a 
statement  that  the  acceptor  desires  that  the  arrangement 
should  be  put  into  more  formal  terms,  the  mere  reference 
to  such  a  proposal  will  not  prevent  the  court  from  en- 
forcing the  final  agreement  so  arrived  at.5  But  if  the 
agreement  is  made  subject  to  certain  conditions,  then 
specified  or  to  be  specified  by  or  for  the  party  making 
it,  then  there  is  no  final  agreement  such  as  the  court 
will  enforce  until  those  conditions  are  accepted.6 

Written  contract  to  be  prepared.  The  mere  fact  that  a 
wjitten  contract  was  to  be  subsequently  prepared,  does 
not  show  that  a  final  agreement  between  the  parties  was 
not  made,  but  it  tends  to  show  it.7 

Contract  not  specifically  enforcible.  A  contract,  any 
material  part  of  which  remains  to  be  settled  by  negoti- 
ation between  the  parties,  as  where  there  is  no  designa- 
tion of  the  time  of  payment  of  the  great  bulk  of  the 
consideration  for  a  conveyance  of  land,  will  not  be  en- 
forced in  equity  on  a  bill  for  specific  performance.8  So 
there  is  a  mere  proposal  of  terms,  and  not  a  contract 
capable  of  enforcement  by  an  accepted  offer  to  sell  land 
where  there  is  uncertainty  as  to  the  clauses  to  be  inserted 
in  the  contract,  and  as  to  the  length  of  title  to  be  shown.9 

Offer  to  purchase.  Where  a  party  wrote  to  the  man- 
ager of  a  bank,  who  was  verbally  authorized  to  sell  cer- 
tain property  belonging  thereto,  "I  hereby  agree  to 
purchase"  specified  property  from  the  bank,  and  made 
a  payment  on  account  of  the  purchase  money,  but  this 
memorandum  was  not  submitted  to  the  managing  offi- 
cers of  the  bank,  nor  signed  by  any  one  acting  on  their 
behalf,  and  the  solicitor  for  the  bank  refused  that  it 


§   42  CONSENT.  58 

should  be  put  into  such  a  shape  as  to  bind  the  bank,  it 
was  held  that  the  memorandum  amounted  to  an  offer  to 
purchase  only.10 

Acceptance  of  tender  not  sufficient,  etc.  And  the  accept- 
ance of  a  tender  to  supply  a  work-house  with  meat,  does 
not  form  a  binding  contract,  where  the  advertisement 
stated  that  all  contractors  would  have  to  sign  a  written 
contract  after  acceptance  of  the  tender.11 

1  See  Thames  Loan  etc.  Co.  v.  Seville,  100  Ind.  309,  314. 

2  Lyman  v.  Robinson,  14  Allen,  244,  252  ;  quoted  Moulton  r.  Ker- 
shaw,  50  Wis.  316,  321 ;  48  Am.  Rep.  516,  518.    See  also  Gates  v.  Nelles, 
29  N.  W.  Rep.  (Mich.)  73. 

3  Lyman  v.  Robinson,  14  Allen,  242,  254. 

4  Ridgway  r.  Wharton.  6  H.  L.  Cas.  268.    An  agreement  to  be 
finally  settled  must  comprise  all  the  terms  which  the  parties  intend 
to  introduce  into  the  agreement :  Ridgway  v.  Wharton,  6  H.  L.  Cas. 
268.    For  an  agreement  to  enter  into  an  agreement  upon  terms  to  be 
afterwards  settled,  is  a  contradiction  in  terms,  since  until  the  terms 
of  the  agreement  are  settled  the  party  is  perfectly  at  liberty  to  retire 
from  the  bargain  :  Ridgway  v,  Wharton,  6  H.  L.  Cas.  268. 

5  Crossley  v.  Maycock,  Law  R.  18  Eq.  180, 181. 

6  Crossley  v.  Maycock,  Law  R.  18  Eq.  180, 181. 

7  Methudy  v.  Ross,  10  Mo.  App.  101, 106. 

8  Potts  v,  Whitehead,  20  N.  J.  Eq.  55.  58,  60. 

9  Rummens  v.  Robbins,  3  Do  Gex,  J.  &  S.  88,  93. 

10  Dominion  Bank  r.  Kno\v!ton,  25  Grant  U.  C.  125, 130.    And  that 
before  a  formal  acceptance  thereof  by  the  bank  authorities,  the 
writer  was  at  liberty  to  withdraw  the  same:  Dominion  Bank   r. 
Knowlton,  2-i  Grant  U.  C.  125,  130. 

11  Guardians  of  the  Poor  r.  Petch,  10  Ex.  610.     Acceptance  of 
shares:  See  New  Brunswick  etc.  Ry.  Co.  r.  Muggridge,  4  Hurl.  &  N. 
160  ;  Boglead  Manuf.  Co.  v.  Montague,  10  Com.  B.  N.  S.  481. 

$  42.  Reduction  to  writing,  etc.  —  As  requisite  to  valid 
contract.  It  is  a  general  rule,  applicable  to  contracts  of 
sale,1  that  where  parties  enter  into  any  agreement,  and 
the  understanding  is  that  it  is  to  be  reduced  to  writing, 
or  if  it  is  already  in  written  form,  that  it  is  to  be  signed 
before  it  is  acted  on  or  to  take  effect,  it  is  not  binding 
until  it  is  so  written  or  signed.2  And  there  is  no  sale 
where  a  party  assenting  to  deliver  wood  to  a  mining 
company  fails  to  sign  the  written  agreement  embody- 


59  CONSENT.  §  43 

ing  the  terms  of  the  contract,  and  to  furnish  the  re- 
quired bond.3 

Estoppel  to  object  to  want  of.  But  where  parties  agree 
upon  the  terms  of  a  contract  which  is  to  be  reduced  to 
writing  but  never  is,  and  the  parties  on  one  side  avail 
themselves  of  the  benefit  of  the  proposition,  and  go  on 
under  this  agreement  as  though  it  had  be^n  in  writing, 
they  cannot  be  heard  to  say  that  it  was  understood  that 
the  contract  was  not  to  be  binding  unless  reduced  to 
writing.4 

1  Mori-ill  v.  Tehama  etc.  Co.  10  Nev.  135. 

2  See  Boyd  v.  Hind,  36  Eng.  L.  &  Eq.  566 ;  Fisk  v.  Levine,  16 
La,  An.  29  ;  Dodge  v.  Hopkins,  14  Wis.  630  ;  Townsend  v.  Hubbard,  4 
Hill,  351 ;  Crane  v.  Portland,  9  Mich.  493. 

8  Morrill  v.  Tehama  etc.  Co.  10  Nev.  125,  135,  136.  Compare 
Hortham  t>.  Gordon,  46  Cal.  582. 

4    Miller  v.  McManis,  57  111.  126, 130. 

£  43 .  Contract  by  telegraph .  —  Permissibility  and  proof. 
A  contract  may  be  entered  into  by  means  of  telegraphic 
dispatches  ; *  and  in  cases  where  such  communications 
are  relied  upon  to  establish  contracts,  they  may  be 
proved  in  the  same  manner  as  other  writings,  such  as 
letters,  etc.2 

Answer  to  letter,  etc.  So  the  communication  of  one  of 
the  contracting  parties  may  be  by  mail,  and  the  reply 
thereto  by  telegraph,3  and  thus  the  contract  be  com- 
pleted.4 

Acceptance  as  closing  contract.  And  where  the  offer 
to  make  a  sale,  such  as  a  proposal  to  sell  Mexican  dol- 
lars, is  sent  by  telegram,  an  acceptance  signified  in 
the  same  manner  is  a  sufficient  manifestation  of  con- 
currence to  consummate  the  contract,  irrespective  of 
the  time  when  it  conies  to  the  knowledge  of  the  pro- 
posing party.5 

Qualified  or  conditional  acceptance.  An  offer  by  tele- 
graph is  not  accepted  when  the  reply,  besides  mis- 


$  43  CONSENT.  60 

understanding  the  unintelligible  proposal,  contains  a 
qualification,  such  as  a  requirement  of  the  reservation 
of  crops  in  a  sale  of  land.6  And  a  telegram  referring  to 
a  previous  letter  which  contained  a  conditional  accept- 
ance of  an  offer  to  sell  property,  cannot  be  construed  as 
an  absolute  acceptance  of  the  proposition.7 

Construction.  Telegrams  communicating  an  offer  and 
acceptance  of  the  same  though  of  doubtful  scope,  yet 
when  acted  on  form  a  contract,  governing  the  acts  of  the 
parties  under  the  stipulations  of  the  telegrams.8  But 
where  the  telegrams  are  merely  the  preliminary 
arrangements  for  a  final  meeting,  at  which  the  busi- 
ness is  to  be  closed  out,  they  do  not  constitute  a  con- 
tract.9 And  where,  in  an  action  for  an  alleged  breach 
of  a  written  contract  of  sale  made  by  telegraph,  the 
telegrams  fail  to  show  what  the  property  contracted  for 
is,  what  the  price  to  be  paid  for  it  is,  and  to  whom  it  is 
sold,  they  are  insufficient  to  establish  a  written  contract 
and  to  take  the  case  out  of  the  statute  of  frauds.10 

Receipt  of  acceptance.  Regardless  of  the  effect  of 
sending  an  acceptance  in  ordinary  cases,  it  has  been 
held  that  the  party  making  the  offer  may  always,  if  he 
chooses,  make  the  formation  of  the  contract  dependent 
upon  the  actual  communication  to  himself  of  the  ac- 
ceptance.11 Thus,  if  an  offer  is  made  by  letter,  in 
which  the  person  making  the  offer  requests  an  answer 
by  telegraph  "yes"  or  "no,"  and  states  that  unless  he 
receives  the  answer  by  a  certain  date  he  "shall  con- 
clude 'no,'"  the  offer  is  made  dependent  upon  an 
actual  receipt  of  the  telegram  on  or  before  the  date 
named,  and  without  such  receipt  the  contract  is  not 
completed.12  And  it  has  been  held  upon  the  same 
ground  that  there  was  no  complete  contract  of  sale  of 
an  interest  in  cattle  to  be  secured  at  a  distant  point, 
where  the  proposed  buyer  thereof  telegraphed  "  yes," 


61  CONSENT.  g  43 

as  it  had  been  arranged  that  he  should  do  if  he  was 
willing  to  take  a  share  of  the  property,  but  the  dispatch 
never  reached  the  other  party.13 

Speedy  acceptance  required.  In  case  of  a  proposition 
by  telegraph  for  the  sale  of  certain  goods,  the  market 
for  which  was  subject  to  sudden  and  great  fluctuations, 
the  understanding  will  be  construed  to  be  that  an  im- 
mediate answer  should  be  returned  ;  u  and  an  accept- 
ance of  such  proposition  telegraphed  after  a  delay  of 
twenty  -four  hours  from  the  time  of  its  receipt,  has  been 
held  not  an  acceptance  within  a  reasonable  time,15  and 
not  to  operate  to  complete  the  contract.16 

Evidence  of  oral  acceptance.  Where  a  party  who  had 
acted  as  a  broker  for  another,  and  had  also  dealt  with 
him  on  his  own  account,  telegraphed  as  follows  :  "  Tele- 
graph how  much  corn  you  will  sell,  with  lowest  cash 
price,"  to  which  the  reply  by  telegraph  was,  "Three 

housand  cases,  one  dollar  five  cents,  open  one  week," 
whereupon  a  counter-telegram  was  sent,  reading  : 
"Sold  corn;  will  see  you  to-morrow,"  it  was  held  in- 

ompetent  in  an  action  for  the  non-delivery  of  the  corn, 
for  the  former  broker  and  dealer  to  offer  to  show  that 
at  an  interview  on  the  next  day,  he  verbally  accepted 
the  offer  contained  in  the  telegrams,  that  the  other 
party  promised  to  ship  the  corn  to  him,  and  that  the 
last  telegram  referred  to  a  resale  by  himself  of  the  corn 
to  a  third  party.17 

1    See  cases  next  cited.    Contract  by  telegraph  :  See  note  to  Phila 
Whiting  Co.  v.  Detroit  White  Lead  Works,  24  N.  W.  Kep.  835  ;  also,  14 
m.  Law  Reg.  N.  S.  401. 


2  Durkee  v.  Vt.  Cent.  R.  R.  Co.  29  Vt.  127,  140.    And  see  Taylor  v. 
teamboat,  20  Mo.  254,  259,  260.    Requiring  production:  Woods  v. 

Miller,  55  Iowa,  168.    Proof  of  authenticity  requisite  :  Hurt  v.  Winona 
etc.  R.  R.  Co.  31  Minn.  472,  473  ;  Adams  v.  Lumber  Co.  32  Minn.  210,  217. 

3  See  Moulton  v.  Kershaw,  59  Wis.  316  ;  48  Am.  Rep.  510,  n.  519; 
Robinson    Machine  Works   v.  Chandler,  56   Ind.  575;    Rommel  v. 
Wingate,  103  Mass.  327,  330  ;  Holton  v.  McPike,  27  Kan.  286. 

4  See  Prosser  v.  Henderson,  20  Up.  Can.  Q.  B.  438,  440  ;  Alford  v. 
Wilson,  20  Fed.  Rep.  96.    And  compare  Lewis  v.  Browning,  130  Mass. 

NEWMARK  SALES.  —  6. 


§   44  CONSENT.  62 

173.  Or  a  letter  and  telegram  of  acceptance  in  answer  to  an  offer  to 
sell  coin  may  be  sent  on  the  same  day :  Trevor  i\  Wood,  3(>  N.  Y. 
307.  Or  the  acceptance  of  a  telegraphic  offer  of  goods  for  sale  may 
be  made  by  telegram  and  later  letter:  Byrne  v.  Van  Tienhoven, 
Law  B.  5  C.  P.  D.  344  ;  30  Eng.  Bep.  833. 

5  Trevor  v.  Wood,  36  N.  Y.  307,  309,  310.    And  see  Stevenson  v. 
McLean,  Law  B.  5  Q.  B.  D.  346  ;  29  Eng.  Bep.  341 ;  Minnesota  Oil  Co.  v. 
Collier  Lead  Co.  4  Dill.  431,  434.    But  compare  Haas  v.  Myers,  111  111. 
421  ;  53  Am.  Bep.  634,  635. 

6  Clay  v.  Bickets,  23  N.  W.  Bep.  755 ;  Sup.  Ct.  Iowa,  June  6, 1885. 

7  Baker  v.  Holt,  56  Wis.  100, 104. 

8  Duble  v.  Batts,  38  Tex.  312,  313,  314. 

9  Martin  v.  Northwestern  Fuel  Co.  22  Fed.  Bep.  596.    Where, 
however,  bought  and  sold  notes  were  to  be  exchanged  by  the  parties 
to  a  con  tract,  and  in  the  same  letter  in  which  the  one  party  had  mailed 
the  notes  for  signing  he  asked  the  other  party  to  "  cable  confirmation 
of  the  contract,"  it  was  held  that  the  confirmation  was  to  be  signified 
by  the  cablegram,  and  that  the  bought  and  sold  notes  could  not  be 
considered  as  the  preliminaries  to  a  contract,  but  as  evidence  of  a 
contract  already  concluded:  Darlington  Iron  Co.  v.  Foote,  16  Fed. 
Bep.  646,  649. 

10  Watt  ?\  Wis.  Cranberry  Co.  63  Wis.  730.    Nor  can  oral  testimony 
be  admitted  to  supply  the  defects  or  omissions  therein  :  Watt  v.  Wis. 
Cranberry  Co.  63  Wis.  730.    See  chapter  on  STATUTE  OF  FRAUDS. 

11  Lewis  v.  Browning,  130  Mass.  173, 175.    And  see  Household  Fire 
Ins.  Co.  v.  Grant,  Law  B.  4  Ex.  D.  216,  223;  31  Eng.  4Gfi,  472.    Note  to 
Maclay  v.  Harvey,  32  Am.  Bep.  44  ;  Vassar  v.  Camp,  11  N.  Y.  441, 451 ; 
1  Langdell's  Cases  on  Contracts,  110, 117. 

12  Lewis  v.  Browning,  130  Mass.  173, 175, 176. 

13  Haas  v.  Myers,  111  111.  121  ;  53  Am.  Bep.  634. 

14  Minn.  Linseed  Oil  Co.  v.  Collier  White  Lead  Co.  4  Dill.  431, 436. 

15  See  §  35,  on  TIME  FOR  ACCEPTANCE. 

16  Minn.  Lead  Oil  Co.  v.  Collier  White  Lead  Co.  4  Dill.  431,  435,  436. 

17  Lincoln  v.  Erie  Preserving  Co.  132  Mass.  129. 

$  44.  Implied  sales.  —  Express  contract  as  excluding 
implied.  An  implied  contract  cannot  exist,  where  there 
is  an  existing  express  contract  concerning  the  same 
subject-matter,1  and  where  the  provisions  of  the  express 
contract  were  intended  to  control  and  supersede  those 
which  would  otherwise  be  raised  by  implication.2 

Appropriation  of  goods  by  alleged  purchaser.  But  one 
who  receives  goods  sent  to  him,  knowing  that  the 
sender  claims  that  the  receiver  has  purchased  them 
of  him,  cannot,  in  absence  of  mistake  or  fraud,  ap- 
propriate them  to  his  own  use,  and  then  disclaim  the 
purchase.3 


63  CONSENT.  \  44 

Delivery  and  retention  of  part.  And  where  there  is  an 
entire  contract  to  deliver  a  large  quantity  of  goods,  con- 
sisting of  distinct  parcels,  within  a  specified  time,  and 
the  seller  delivers  part,  he  may,  after  the  expiration  of 
that  time,  recover  the  value  of  the  part  delivered  to  the 
purchaser  and  retained  by  him.4 

1  Walker  v.  Brown,  28  111.  378,  383.    And  see  Wood  v.  Edwards, 
19  Johns.  212. 

2  See  Commercial  Bank  v.  Pfeiffer,  22  Hun,  327,  335. 

3  Wellauer  v.  Fellows,  48  Wis.  105, 109.    And  see  Bartholomae  v. 
Paul,  18  W.  Va.  771,  779. 

4  Oxendale  v.  Wetherell,  9  Barn.  &  C.  586,  587.    And  see  Richard- 
son ?-.  Dunn,  2  Q.  B.  218  ;  Hart  v.  Mills,  15  Mees.  &  W.  85  ;  Bowser  v. 
Hoyt,  18  Pick.  355,  557.    But  see  contra,  Keiu  v.  Tupper,  52  N.  Y.  550, 
555. 


\  45  PAETIES.  64 

CHAPTER  IV. 

PARTIES. 

\  45.  In  general. 

g  46.  Insane  and  incompetent  persons. 

\  47.  Intoxicated  persons. 

2  48.  Infant's  sales  and  purchases. 

\  49.  Infant's  necessaries. 

2  50.  Express  contract  for  necessaries. 

5  51.  Trading  purchases  of  infants. 

2  52.  Misrepresentation  of  age  by  infant. 

§  53.  Ratification  after  majority. 

2  54.  Disaffirming  transaction. 

2  55.  Married  women  at  common  law. 

1  56.  In  equity. 

2  57.  Under  statutes. 

2  58.    Sole  traders  by  custom. 

2  59.    Separate  trading  under  special  enactments. 

§  45  In  general. —  As  element  of  sale.  Competent 
parties  to  enter  into  the  contract  are  enumerated  among 
the  essential  elements  of  a  sale.1  And  a  sale  has  been 
declared  to  be  a  contract  between  two  parties,  one  of 
whom  acquires  thereby  a  property  in  the  thing  sold, 
and  the  other  parts  with  it  for  a  valuable  consideration.2 

Seller  and  buyer.  The  seller  is  the  one  who  parts 
with  and  passes  the  title  to  the  thing  ; 3  and  this  term  is 
more  usually  applied  in  the  sale  of  chattels,  while  that 
of  vendor  is  commonly  employed  in  the  transfer  of 
real  property.4  The  buyer  is  the  party  to  whom  the 
transfer  is  made,  and  who  thereby  gains  title  to  the 
subject  of  transfer;5  but  it  is  convenient  and  custom- 
ary to  use  the  terms  "  vendee  "  and  "  purchaser  "  when 
referring  to  real  property,  and  "  buyer  "  when  the  sale 
is  of  personal  property.6 

Who  may  sell.  As  a  general  rule,  all  persons  sui  juris 
inay  be  either  buyers  or  sellers.7  But  only  the  owner, 


PARTIES.  §  46 

or  one  acting  in  his  behalf,  can,  ordinarily,  sell  goods 
and  transfer  a  valid  title  to  them,  such  as  will  avail 
even  an  innocent  purchaser  thereof.8 

Who  may  buy.  There  is  a  class  of  persons  who  are 
incapable  of  purchasing,  except  sub  modo,g  as  infants 
and  married  women,  insane  persons  and  drunkards  ; 10 
and  another  class,  consisting  of  those  who,  in  conse- 
quence of  their  peculiar  confidential  relation  toward 
the  owner  of  the  thing  sold,11  are  totally  incapable  of 
becoming  purchasers  while  that  relation  exists.12 

1  See  Gardner  v.  Lane,  12  Allen,  39,  43. 

2  Creveling  v.  Wood,  95  Pa.  St.  152,  158.     And  see  Eldridge  v. 
Kuehl,  27  Iowa,  160, 103  ;  Winfield's  Words,  etc.  547. 

3  See  citations  in  last  note. 

4  2  Bouvier  Law  Diet.  (15th  ed.)626.    And  see  Coles  v.  Perry,  7 
Tex.  100, 135. 

5  See  Eldridge  v.  Kuehl,  27  Iowa,  160, 173  ;  Creveling  v.  Wood,  95 
Pa.  St.  152,  158. 

6  2  Abbott's  Law  Diet.  628.    And  see  Coles  v.  Perry,  7  Tex.  109, 
55. 

7  2  Bouvier  Law  Diet.  (15th  ed.)  606. 

8  See  Klein  v.  Seibold,  89  111.  540, 542  ;  Bearce  v.  Bowker,  115  Mass. 
59, 132  ;  Breckenridge  v.  McAfee,  54  Ind.  141, 149  ;  chapter  on  TKANS- 
EB  OF  TITLE. 

9  See  2  Blackst.  Com.  291  ;  Allis  v.  Billings,  6  Met.  415  ;  39  Am. 
Dec.  744,  746. 

10  2  Bouvier  Law  Diet.  (15th  ed.)  607. 

11  See  Michoud  v.  Girod,  4  How.  503,  555,  fully  discussing  subject. 

12  2  Bouvier  Law  Diet.  (15th  ed.)  607.    These  are  trustees,  guard- 
ians, assignees  of  insolvents,  and  generally  all  persons  who,  b  /  tacir 
connections  wiLh  the  owner,  or  by  being  employed  concerning  his 
affairs,  have  acquired  a  knowledge  of  his  property,  as  attorneys, 
conveyancers,  and  the  like :  2  Bouvier  Law  Diet.  (15th  ed.)  607.    At- 
torney's purchase  of  litigious  rights  :  Denny  v.  Anderson,  36  La.  An. 
762  ;  19  The  Beporter,  338. 

§  46.  Insane  and  incompetent  persons.  —  Contracts 
voidable.  Persons  deranged  in  intellect  stand  substan- 
tially on  the  same  footing  as  infants  with  regard  to  the 
voidable  character l  of  contracts  made  by  them  ; 2  and 
it  may  be  shown  by  or  for  such  a  party  that  at  the 
time  of  a  purchase  the  buyer  was  not  of  capacity  to 
contract.3 


§  47  PARTIES.  66 

When  sales,  etc.,  sustained.  Yet  the  result  of  the 
authorities  seems  to  be  that  dealings  of  sale  and  pur- 
chase by  a  person  apparently  sane,  though  subse- 
quently found  to  be  insane,  will  not  be  set  aside  against 
those  who  have  dealt  with  him  on  the  faith  of  his  being 
a  person  of  competent  understanding;4  and  this  view 
is  particularly  favored  where  no  advantage  is  taken  of 
the  person  of  unsound  mind,  and  the  contract  has  been 
wholly  or  partially  performed,5  so  that  the  parties  can- 
not be  completely  restored6  to  their  position.7 

Necessaries.  A  purchase  of  necessaries  which  are 
used  by  a  lunatic  is,  however,  unquestionably  valid 
where  no  advantage  is  taken  of  his  condition.8 

1  See  note  to  Jackson  v.  King,  15  Am.  Dec.  364  :  Rusk  v.  Fenton, 
14  Busli,  490  ;  29  Am.  Rep.  413,  415;  Fitzgerald  v.  Reed,  9  Smedes  & 
M.  (J4, 102. 

2  Hallett  v.  Oakes,  1  Cush.  296,  298, 299.    And  see  Breckenridge  v. 
Ormsby,  1  Marsh.  J.  J.  236,  238  ;  19  Am.  Dec.  71 ;  Lincoln  v.  Buck- 
master,  32  Vt.  652,  601.    But  compare  Hall  v.  Butterfield,  59  N.  H. 
354  ;  47  Am.  Rep.  209,  210;  Burke  v.  Allen,  29  N.  H.  106,  117;  Ewell's 
Lead.  Cas.  576,  585. 

3  Molton  v.  Camroux,  2  Ex.  487  ;  4  Ex.  17 ;  Ewell's  Lead.  Cas.  014. 
Presumption  of  sanity :  Titcomb  r.  Varityle.W  111.  371,  373  ;  McCarty 
v.  Kearnan,  86  111.  291,  295  ;  Lilly  v.  Waggoner,  2J  111.  395,  397. 

4  Elliott  v.  Ince,  7  De  Gex,  M.  &  G.  475,  488 ;  Carr  v.  Holiday,  5 
Ired.  Eq.  107 ;  McCormick  v.  Littler,  85  111.  62,  65  ;  28  Am.  Rop.  610. 
But  compare  Lincoln  v.  Buckmaster,  32  Vt.  652.    Deed  of  lunatic 
deemed  inoperative :  Manning  v.  Gill,  Law  R.  13  Eq.  485. 

5  See  note  to  Jackson  v.  King,  15  Am.  Dec.  366. 

6  See  note  last  cited,  at  p.  367. 

7  Molton  v.  Camroux,  2  Ex.  487 ;  4  Ex.  17  ;  Ewell's  Lead.  Cas.  614, 
626,  and  cases  reviewed.    And  see  Beavan  v.  M'Donnell,  9  Ex.  303  ;  10 
Ex.  184  ;  Niell  v.  Morley,  9  Ves.  Jr.  478  ;  Ewell's  Lead.  Cas.  628  ;  Mut. 
Life  Ins.  Co.  v.  Hunt,  14  Hun,  109, 172  ;  Rusk  v.  Fenton,  14  Bush,  4i)0  ; 
29  Am.  Rep.  413,  415;   Campbell  v.  Hill,  23  Up.  Can.  C.  P.  473.    But 
compare  Seaver  v.  Phelps,  11  Pick.  304;  22  Am.  Dec.  372  ;  Ewell's 
Lead.  Cas.  610. 

8  Daner.  Kirkwall,8  Car.  &P.  697;  Baxters.  Earl  of  Portsmouth, 
5  Barn.  &  C.  170;  Ewell's  Lead.   Cas.  632;   Nelson  ?'.  Dunscombo,  9 
Beav.  211.    And  see  HalletC  r.  Oakes,  1  Cush.  290,  298  ;   McCrillis  ?•. 
Bartlett,8  N.  H.  56%  571  ;  Kendall  v.  May,  10  Allen,  59,  67  ;  Richardson 
i'.  Strong,  13  Ired.  103  ;  Sawyer  v.  Lufkin,  56  Me.  308  ;  note  to  Jackson 
v.  Kins;,  15  Am.  Dec.  363  ;  Hall  v.  Butterfield,  59  N.  H.  351 ;  43  Am. 
Rep.  20J,  211. 

§  47.  Intoxicated  persons.  —  Extent  of  intoxication. 
Contracts  to  the  prejudice  of  drunken  persons,1  who  are 


67  PARTIES.  §  48 

so  intoxicated  that  they  are  incapable  of  exercising 
their  judgment,2  and  do  not  know  what  they  are  doing,3 
have  no  validity*  against  them.5 

Contracts  voidable,  etc.    Such  purchases,6  and  other 
ontracts,  however,  are  not  absolutely  void,7  but  merely 
voidable,8  whether  the  drunkenness  be  voluntary,  or 
casioned  by  the  contrivance  of  the  other  party.9 
Liability  for  necessaries.    But  intoxicated  persons  are 
Liable  for  necessaries  supplied  to  them  while  in  an  in- 
ebriated condition,  and  retained  when  sober.10 

1  See  generally  note  to  Wadsworth  v.  Sharpstein,  59  Am.  Dec.  501. 

2  See  Schramm  v.  O'Connor,  98  111.  539,  543. 

3  See  Taylor  v.  Patrick,  t  Bibb,  168,  1G9 ;  Makins  v.  Lightner,  13 
111.  282,  284,  285. 

4  Drunkenness  of  maker  of  promissory  note  held  no  defense : 
State  Bank  v,  McCoy,  69  Pa.  St.  204  ;  8  Am.  Rep.  246  ;  Miller  v.  Finley, 
"6  Mich.  249 ;  12  Am.  Rep.  306. 

5  Gore  ';.  Gibson,  13  Mees.  &  W.  623  ;  Ewell's  Lead.  Cas.  736  ;  2 
Kent  Com.  451.    And  see  Molton  v.  Cumroux,  2  Ex.  487 ;  4  Ex.  17  ; 
"well's  Lead.  Cas.  614,  625;  Fenton  v.  Halloway,  1  Stark.  126;  Pitt  v. 

nith,  3  Camp.  33  ;  Cook  v.  Clay  worth,  18  Ves.  Jr.  12.  Compare  Cal- 
oway  v.  Witherspoon,  5  Ired.  Eq.  128. 

6  See  Reynolds  v.  Waller,  1  Wash.  (Va.)  164. 

7  But  see  Clark  v.  Cadwell,  6  Watts,  139. 

&  See  Arnold  v.  Hickman,  6  Munf.  15  ;  Taylor  v.  Patrick,  1  Bibb, 
16S,  16y ;  Reinecker  v.  Smith,  2  liar.  &  J.  421 ;  Broadwater  v.  Dame, 
10  Mo.  277,  286  ;  Carpenter  v.  Rogers,  22  The  Reporter,  1*7. 

9  Barrett  v.  Buxton,  2  Aik.  167, 168, 170 ;  Ford  v.  Hitchcock,  8  Ohio, 
214. 

10  See  Gore  v.  Gibson,  13  Mees.  <fe  W.  623 ;  Ewell's  Lead.  Cas.  734, 
737  ;  McCrillis  v.  Bartlett,  8  N.  H.  565),  571. 

I  48.  Infant's  sales  and  purchases.  —  Voidable  character 
of  transactions.  The  tendency  of  the  modern  decisions 
is  to  hold  most  of  the  acts  and  contracts  of  infants  void- 
able only,1  and  not  void  ; 2  so  that  in  general,  on  attaining 
majority,  the  transaction  may  be  ratified  or  disaffirmed 
by  such  former  minors.3 

Ratification  of  purchase  after  majority.  Thus,  an 
infant  after  reaching  the  age  of  majority  may  ratify  a 
prior  purchase,  as  by  retaining  and  using  the  goods  for 
an  unreasonable  time.4 


\    49  PARTIES.  68 

Time  to  disaffirm  sale  or  purchase.  And  even  while 
still  under  age,  an  infant  purchaser  may  maintain  an 
action  against  the  seller,  at  least  where  the  contract  is 
in  part  executed  by  the  infant,  and  it  is  for  his  benefit 
that  he  should  be  enabled  to  sue  upon  it,5  though  it 
sometimes  has  been  held  that  a  sale  and  delivery  of 
goods  by  an  infant  is  not  voidable  by  him  till  he  comes 
of  age.6 

Enforcing  delivery.  But  an  infant  who  contracts  with 
an  adult  to  purchase  chattels,  cannot  insist  upon  per- 
formance of  the  contract  by  delivery  on  the  part  of  the 
latter,  while  failing  to  make  payment  as  stipulated,  and 
thus  perform  his  own  part  of  the  agreement.7 

1  See  Zouch  v.  Parsons,  3  Burr.  17,  94  ;  2  Kent  Com.  235  ;  and  con- 
sult discussion  of  subject  in  13  Am.  Law  Rev.  2SO  ;  also  Klein  v.  Beeho, 
6  Conn.  4!>4,  502,  503 ;  Little  v.  Duncan,  9  Rich.  55  ;  64  Am.  Dec.  760. 701, 
762  ;  Fetrow  v.  Wiseman,  40  Ind.  119, 150,  152  ;  Vent  a.  Osgood,19  Pick. 
572,  573  ;  Tucker  v.  Moreland,  10  Peters,  58,  71. 

2  Distinction  noted  in  general :  Stevens  v.  Hyde,  32  Barb.  171, 176  ; 
Somes  v.  Brewer,  2  Pick.  184,  191  ;  13  Am.  Dec.  406  ;  Cummings  v. 
Powell,  8  Tex.  80,  85. 

3  See  2  Kent  Com.  235 ;  N.  H.  Mut.  Fire  Ins.  Co.  v.  Noyes,  32  N.  H. 
345,  348.    But  compare  Ex  parte  Kibble,  Law  R.  10  Ch.  373.    Knowl- 
edge of  non-liability  not  necessary  to  make  affirmance  binding: 
Anderson  v.  Soward,  40  Ohio  St.  325  ;  48  Am.  Rep.  687,  688. 

4  Boyden  v.  Boyden,  9  Met.  521.    And  see  Green  ?>.  Wilding,  59 
Iowa,  679,  681 ;  44  Am.  Dec.  6D6,  697  ;  22  Ain.  Law  Reg.  271,  n.  273. 

5  Warwick  v.  Bruce,  2  Maule  &  S.  205,  209. 

6  Roof  ?'.  Stafford,  7  Cowen,  179, 1^1, 1S3.    But  see  contra.,  Towle  v 
Dresser,  73  Me.  252,  256,  257  ;  Hall  v.  Butterfield,  59  N.  H.  304  ;  47  Am- 
Rep.  209,  213. 

7  Biedeman  v.  O'Connor,  7  N.  E.  Rep.  (111.)  463. 

$49.  Infant's  necessaries. —  Common- 1 aw  liability.  An 
infant  has  authority  at  common  law  to  make  binding 
contracts1  for  necessaries.2 

Support  supplied  by  parents,  etc.  And  it  has  been 
held  in  some  of  the  cases  in  England  that  a  purchase  of 
necessaries  on  credit  by  an  infant  may  be  valid,  irre- 
spective of  the  question  whether  he  has  an  allowance 
sufficient  to  enable  him  to  supply  himself  with  neces- 


69  PARTIES.  I  49 

saries.3  But  the  rule  seems  to  be  otherwise  in  this 
country ; 4  and  it  has  recently  been  laid  down  that  the 
question  of  what  constitutes  necessaries  for  an  infant 
must  be  determined  by  the  actual  state  of  each  case, 
and  not  by  appearances  in  regard  to  the  support  supplied 
by  parents  or  guardians.5 

Scope  of  term  u  necessaries."  The  term  "  necessaries  "  6 
is  not  restricted  to  the  absolute  necessaries  of  life,7  as 
meat,  drink,  apparel,  and  lodgings ; 8  but  it  also  em- 
braces articles  suitable  to  the  condition,  rank,  fortune, 
and  general  needs  of  the  infant.9  Yet  in  general,  articles 
of  mere  luxury  are  always  excluded  ; 10  though  luxurious 
articles  of  utility  are  in  some  cases  allowed.11  Neces- 
saries for  an  infant's  wife  and  children  are  necessaries 
for  him.12  But  a  horse  has  been  held  not  within  the 
denomination  of  necessaries  for  which  an  infant  is 
liable.13 

Province  of  court  and  jury.  And  it  is  declared  to  be 
the  well-settled  rule  that  it  is  the  province  of  the  court 
to  determine  whether  the  articles  sued  for  are  within 
the  class  of  necessaries ; u  and  if  so,  it  is  the  proper  duty 
of  the  jury  to  pass  upon  the  question  of  their  quantity, 
quality,  and  adaptation  to  the  condition  and  wants  of  the 
Infant.16 

1  See  Hall  v.  Butterfield,  59  N.  H.  354 ;  47  Am.  Rep.  209, 212.    Money 
spent  for  necessaries  :  Price  v.  Sanders,  60  Ind.  310,  314. 

2  Hands  v.  Slaney,  8  Term  Rep.  578, 579.    And  see  Fridge  v.  State, 
3  Gill  <fe  J.  103 ;  20  Am.  Dec.  463,  468 ;  Cole  v.  Pennoyer,  14  111.  158, 160  ;  2 
Kent  Com.  239  ;  Fetrow  v.  Wiseman,  40  Ind.  148. 

3  See  Burghart  v.  Hall,  4  Mees.  &  W,  727  ;  Peters  v.  Fleming,  6 
Meos.  &  W.  42.    But  see  Baines  v.  Toy,  41  L.  T.  N.  S.  292  ;  18  The  Re- 
porter, 232. 

4  Davis  v.  Cal dwell,  12  Gush.  512,  513.    And  compare  Strong  r. 
Footo,  42  Conn.  203,  205  ;  Lefils  v.  Sugg,  15  Ark.  137, 139  ;  2  Kent  Com. 
239  ;  Decell  v.  Lewenthal,  57  Miss.  331 ;  34  Am.  Rep.  449,  451 ;  Kline  v. 
L'Amoreux,  2  Paige,  419;  22  Am.  Dec.  652,  653  ;  Freeman  v.  Bridges,  4 
Jones,  1  ;  67  Am.  Dec.  258,  260.    Poverty  of  parent  immaterial :  Hoyt 
v.  Casey,  114  Mass.  397  ;  19  Am,  Rep.  371,  373. 

5  Trainer  ?;.  Trumbull,  22  The  Reporter  (Mass.)  135, 136.    And  see 
Angel  v.  McLellan,  16  Mass.  31 ;  Swift  v.  Bennett,  10  Cush.  436  ;  Davis 
v.  C'aldwell,  12  Cush.  512. 


§    50  PARTIES.  70 

6  See  Freeman  v.  Bridges,  4  Jones,  1 :  f>7  Am.  Dec.  25S,  259. 

7  See  Hall  v.  Butterfield,  59  N.  II.  354  ;  47  Am.  Rep.  209,  213. 

8  See  cases  cited  in  next  note.    But  see  contra,  Shelton  7'.  Pendle- 
ton.  H  Conn.  -117,  423.    And  consult  N.  II.  Mut.  Fire  Ins.  Co.  v.  Noyes, 
32  ;x.  II.  345,  350,  351. 

9  See  Cripps  v.  Hill,  6  Q.  "B.  606,  611 ;  Chappie  v.  Cooper,  13  Mees. 
&  \Y.  252,  25.S  ;  Rundel  v.  Keeler,  7  Watts,  237,  239  ;  Strong  r.  Foote,  32 
Conn.  203,  20 "j ;  Tupper  n  Cadwell,  12  Met.  559.  5fi2  ;  Breed  v.  Judd,  1 
Gray,  455,  458.    Enumeration  of  infant's  necessaries:   Schouler  on 
Domestic  Relations  (3d  ed.)  g§  411-413.    Burden  of  proof  to  show  that 
articles  are  necessaries :  Wood  v.  Losey,  50  Mich.  475, 477  ;  22  Am.  Law 
Reg.  605,  n.  607. 

10  Chappie  ?'.  Cooper,  13  Mecs.   &  W.  252,  258.    And  see  Ryder 
?•.  Wombwell,  Law  R.  3  Ex.  90;  Price  v.  Sanders,  60  Ind.  310,  314; 
McKanna  v.  Merry,  61  111.  177, 179. 

11  Chappie  v.  Cooper,  1 
Wombweil,  Law  R.  3  Ex.  9 

12  Chappie  r.  Cooper,  13  Mees.  cfe  W.  252,  259.    And  see  Abell  v. 
Warren,  4  Vt.  149,  152 ;  Tupper  ?-.  Cadwell,  12  Met.  559,  562  ;  Price  v. 
Banders,  00  Ind.  310,515.    Compare  Anderson  v.  Smith,  33  Md.  465; 
Freeman  v.  Bridger,  4  Jones,  1 ;  67  Am.  Dec.  258,  259. 

13  Rainwater  v.  Durham,  2  Nott  &  McC.  524,  525  ;  10  Am.  Dec.  637. 
And  see  Merriam  r.  Cunningham,  11  Cush.  40,  44;  Grace  ?•.  Hale,  2 
Humph.  27,  30;  36  Am.  Dec.  2<i6.    But  compare  Hart  v.  Prater,  1  Jur. 
623.    Buggy  for  clerk  not  a  necessary  :  Howard  v.  Siinpkins,  70  Ga. 
322,  325. 

14  See  cases  next  cited. 

15  Merriam  ?'.  Cunningham,  11  Cush.  40,  44.     And  see  Decell  ?'. 
Le  wen  thai,  57  Miss.  331,  33t! ;  34  Am.  Rep.  449,  450  ;  Davis?'.  Caldwell, 
12 Cush.  514.    Compare  2  Kent  Com.  (13th  ed.)311,  n.  1;  Mohuey  v. 
Evans,  51  Pa.  St.  80,  83  ;  McKanna  v.  Merry,  61  111.  177, 179. 

$  50.  Express  contract  for  necessaries.  —  Held  not  bind- 
ing. According  to  some  of  the  authorities,  an  infant 
cannot  bind  himself  by  an  express  contract,  even  for 
necessaries,1  so  as  to  become  liable  to  pay  a  definite 
instead  of  a  reasonable  sum  therefor ; 2  and  he  has 
therefore  been  held  not  liable  on  an  account  stated  for 
necessaries,3  or  on  an  accepted  bill  of  exchange  there- 
for,4 nor,  it  seems,  on  a  promissory  note  therefor.5 

1V7ien  and  hoivfar  held  binding.  But  other  cases  hold 
that  an  infant  may  bind  himself  by  an  express  contract 
for  necessaries,  if  the  form  of  the  contract  is  such  that 
the  consideration  may  be  inquired  into ; 6  and  that  a 
negotiable  note  of  an  infant  may  be  shown  to  have  been 
given  in  part  for  necessaries,  whose  fair  value  is  alone 


71  PARTIES.  §   51 

recoverable  thereon.7  And  the  question  whether  or  not 
an  infant  made  an  express  promise  to  pay  for  neces- 
saries has  lately  been  declared  not  important,  since  he 
is  not  held,  strictly  speaking,  on  his  actual  promise, 
but  on  a  promise  implied  by  law  to  pay  only  what  the 
necessaries  were  reasonably  worth,  instead  of  what  he 
may  have  improvidently  agreed  to  pay  for  them.8 

1  See  Hussey  v.  Jewett,  9  Mass.  100, 101 ;  Martin  v.  Gale,  Law  R.  4 
Ch.  I).  428  ;  20  Ens.  Rep.  6f!0,  662  ;  Vent  v.  Osgood,  19  Pick.  572,  575. 
And  compare  McCrillis  v.  How,  3  N.  H.  348,  349. 

2  See  Beeler  v.  Young,  1  Bibb,  519,  521 ;  Hyer  v.  Hyatt,  3  Cranch 
C.  C.  276,  232  ;  Locke  v.  Smith,  41  N".  II.  346 ;  Parsons  v.  Keys,  4.3  Tex. 
557,  559. 

3  Trueman  v.  Hurst,  1  Term  Rep.  40,  42.    And  see  Ingledew  v. 
Douglass,  2  Stark.  36.    But  compare  generally  Williams  v.  Moor,  11 
Mees.  &  W.  256.    And  see  contra,  Dubose  v.  Whedden,  4  McCord,  221, 
222. 

4  Williams  v.  Watts,  1  Camp.  552. 

5  See  Bouchell  ?;.  Clary,  3  Brev.  194,  195 ;  Trueman  v.  Hurst,  1 
Term  Rep.  40.     Contra,  Dubose  v.  Whedden,  4  McCord,  221,  222.    In 
general,  it  is  the  well-settled  rule  that  a  negotiable  note  of  an  infant 
is  not  void,  but  voidable  only,  and  capable  of  ratification  :  Goodsell  v. 
Myers,  3  Wend.  479,  481 ;  Lawson  v.  Lovejoy,  8  Greenl.  405  ;  23  Am. 
Dec.  526  ;  Whitney  v.  Dutch,  14  Mass.  457,  402  ;  Reed  v.  Batchelder,  1 
Met.  559,  560 ;  Aldrich  v.  Grimes,  10  N.  H.  194 ;  Philpot  v.  Sandwich 
Manuf.  Co.  24  N.  W.  Rep.  (Neb.)  428. 

6  Stone  v.  Dennison,  13  Pick.  1,  6,  7;  23  Am.  Dec.  654.    And  see 
Breed  v.  Judd,  1  Gray,  455,  559. 

7  Earle  v.  Reed,  10  Met.  387,  390.    And  see  Bradley  v.  Pratt,  32  Vt, 
378,  384. 

8  Trainer  v.  Trumbull,  22  The  Reporter  (Mass.)  135, 136. 

\  51.  Trading  purchases  of  infants.  —  No  liability  as  for 
necessaries.  An  infant  is  not  liable  to  pay  for  goods  as 
being  necessaries,  where  they  are  furnished  him  for  his 
trade  or  business.1 

Void  under  strict  rule.  And  the  trading  contracts  of 
an  infant  have  sometimes  been  declared  void  as  against 
public  policy.2 

Voidable  under  modern  tendency.  But  the  tendency  of 
modern  decisions  is  to  hold  all  the  contracts  of  infants 
which  might  be  deemed  void,  merely  voidable,3  so  as  to 
be  capable  of  ratification  by  the  infant  at  his  election.* 


§    52  PARTIES.  72 

1  Deceit  v.  Lewenthal,  57  Miss.  331,  336 ;  34  Am.  Rep.  449,  450 ; 
Whywall  v.  Champion,  Strange,  1083.    And  see  Mason  v.  Wright,  13 
Met.  306;  Grace  v.  Hale,  2  Humph.  27,  30 ;  36  Am.  Dec.  296.    But  he 
becomes  liable  for  so  much  of  goods  supplied  to  him  to  trade  with  as 
are  consumed  as  necessaries  in  his  own  family  :  Tuberville  •?'.  White- 
house,  1  Car.  &  P.  94.    Compare  Moliney  v.  Evans,  51  Pa.  St.  80,  83. 

2  Thornton  v.  Illingworth,  2  Barn.  &  C.  824, 826.    And  see  Belton  r. 
Hodges,  9  Bing.  365,  370  ;  Ex  parte  Jones,  Law  R.  18  Ch.  D.  109.    But 
compare  Williams  v.  Moor,  11  Mees.  &  W.  256, 264  ;  Warwick  v.  Bruce, 
2  Maule  &  S.  205,  209. 

3  See  \  48,  on  INFANT'S  SALES,  etc. 

4  See  Reed  v.  Batchelder,  1  Met.  559,  560 ;  Earl  v.  Reed,  10  Met, 
387,  389 ;  Kennedy  v.  Doyle,  10  Allen,  161 ;  Abell  v.  Warren,  4  Vt.  152, 
154  ;  Hardy  v.  Waters,  38  Me.  450,  451 ;  Mustard  v.  Wohlford,  15  Gratt. 
329,  337;  Weaver  v.  Jones,  24  Ala.  420,  424  ;  Cole  r.  Pennoyer,  14  III. 
158, 160  ;  Fetrow  v.  Wiseman,  40  Ind.  148, 151  ;  Cummings  v.  Powell,  8 
Tex.  80,  90  ;  Schouler  on  Domestic  Relations  (3d  ed.)  §  403. 

g  52.  Misrepresentation  of  age  by  infant. —  Title  of  in- 
nocent purchaser.  A  minor  who  obtains  goods  by 
representing  himself  untruly  to  be  of  full  age  and 
legally  responsible,  is  answerable  under  the  criminal 
law  for  obtaining  goods  under  false  pretenses,1  and  is 
consequently  guilty  of  such  fraud  as  will  render  the 
sale  subject  to  avoidance  by  the  seller;2  but  if  the 
seller  does  nothing  in  disaffirmance,  an  innocent  pur- 
chaser for  value  takes  title.3 

JVb  estoppel  of  infant.  And  according  to  the  weight 
of  authority,  an  infant  is  not  estopped  from  pleading 
infancy  to  an  action  for  the  price  of  goods,  not  neces- 
saries, by  the  fact  that  he  represented  himself  to  be  of 
age  when  he  bought  the  goods,  and  the  seller  relied  on 
that  representation.4 

Infant's  recovery  of  consideration.  So  where  an  infant 
falsely  representing  himself  to  be  of  full  age,  bought  a 
wagon,  paying  part,  and  giving  his  note  secured  by  a 
lien  on  the  wagon  for  the  remainder,  and  after  using 
the  wagon  until  the  use  was  worth  more  than  what  he 
had  paid,  and  until  it  had  depreciated  by  more  than  a 
like  sum,  made  default  in  payment,  whereupon  the 
seller  took  the  wagon  under  his  lien  and  sold  it  at 


73  PARTIES.  I  53 

auction,  it  was  held  that  the  buyer  could  recover  in 
assumpsit  for  the  money  he  had  paid.5 

1  See  2  Wharton's  Criminal  Law,  2099. 

2  Xeff  v.  Landis,  1  Atl.  Rep.  177  ;  21  Cent.  L.  J.  441 ;  Sup.  Ct.  Pa. 
Oct.  o,  1833.    And  the  latter  may  affirm   the  contract  by  suing  in 
assumpsit,  or  disaffirm    by  suing    in  trover  or  replevin :    Neff  r. 
LiiMdis,  1  Atl.   Rep.   177;  21  Cent.   L.  J.  441.     Compare    Badger   v. 
Phinney,  15  Mass.  359  ;  8  Am.  Dec.  105, 108. 

3  Neff  v.  Landis,  1  Atl.  Hep.  177  ;  21  The  Reporter,  60. 

4  Conrad  r.  Lane,  26  Minn.  389  ;  37  Am.  Rep.  412,  n.  413.    And  see 
Wielaud  r.  Ko'oick,  110  111.  16  ;  51  Am.  Rep.  670,677  ;  Burley  v.  Russell, 
10  N.  H.  184  ;  34  Am.  Dec.  146;  Merriam  v.  Cunningham,  11  Cush.  40  ; 
Studwell  v.  Shafter,  54  N.  Y.  249  ;  Gilson  v.  Spear,  38  Vt.  311 ;  Brown 
V.  McCuue,  5  Sand.  228. 

5  Whitcomb  v.  Joslyn,  51  Vt.  79  ;  31  Am.  Rep.  678. 

§  53.  Ratification  after  majority.  —  Ratification  in  writ- 
ing. In  England,  a  ratification  of  a  contract  by  an 
infant  on  attaining  majority,  prior  to  the  recent  enact- 
ment rendering  any  ratification  invalid,1  was  required 
to  be  made  in  writing ; 2  and  such  is  also  the  statutory 
rule  in  several  of  the  States.3 

Modes  of  ratification.  But  in  the  absence  of  an y  stat- 
ute providing  how  a  contract  shall  be  ratified,  any  one 
of  three  modes  ordinarily  will  be  sufficient :  (1)  An  ex- 
press ratification  ;  (2)  acts  which  imply  an  affirmance  ; 
(3)  the  omission  to  disaffirm  in  a  reasonable  time.4 

Direct  promise.  Yet  according  to  many  of  the  cases, 
a  direct  promise,  when  the  infant  comes  of  age,  is 
necessary  to  establish  a  contract  made  during  minor- 
ity,5 and  a  mere  acknowledgment  will  not  have  that 
effect.6 

Acquiescence  in  sale,  etc.  So  it  has  been  laid  down 
that  acquiescence  alone  does  not  confirm  the  contract, 
where  the  infant  has  been  paid  for  goods  sold  and  de- 
livered, though  the  collection  of  a  price,  bill  or  note,  in 
whole  or  part,  would  affirm  the  transfer.7 

Retaining  property  purchased.  But  if  a  minor  pur- 
chaser retains  the  property  bought,  and  uses  it  for  his 


$  54  PARTIES.  74 

own  purposes  for  an  unreasonable  time  after  coming 
of  age,  and  does  not  restore  it  to  the  seller  or  give  him 
notice  of  an  intention  to  avoid  the  contract,  this  operates 
as  a  ratification  of  the  contract,8  and  renders  the  buyer 
liable  for  the  price  of  the  goods.9 

1  See  Ex  parte  Kibble,  Law  R.  10  Ch.  373,  377. 

2  See  Harris  v.  Wall,  1  Ex.  122, 120  ;  Schouler  on  Domestic  Rela- 
tions  (3d  ed.)  g  433.    And  compare  Maccord  r.  Osborue,  Law  R.  1  C.  P. 
I).  5i)8 ;  18  Eng.  Hep.  197  ;  Rawley  v.  Bawley,  Law  R,.  1  Q.  B.  D.  460  ; 
17  Eng.  Rep.  121. 

3  See  Thurlow  v.  Gilmore,  40  Me.  378  380,  381 ;  Bonney  v.  Reardin, 
6  Bush,  34. 

4  Philpot  v.  Sandwich  Manuf.  Co.  24  N.  W.  Rep.  (Mich.)  428.    And 
see  Tobey  v.  Wood,  123  Mass.  88  ;  25  Am.  Rep.  27,  30  ;  Kline  v.  Beebe, 
6  Conn.  4!)4,  505;  Hoit  v.  Underbill,  9  N.  II.  436,  439  ;  34  Am.  Dec.  148  ; 
Little  v.  Duncan,  9  Rich.  55  ;  64  Am.  Dec.  760, 762. 

5  See  cases  cited  in  next  note. 

6  Proctor  v.  Sears,  4  Allen,  95.    And  see  Smith  v.  Ma'yo,  9  Mass. 
64  ;  Thompson  v.  Lay,  4  Pick.  4S,49  ;  16  Am.  Dec.  325  ;  Peirce  r.  Tobey, 
5  Met.  168,  172  ;  Martin  v.  Mayo,  10  Mass.  137 ;   Wilcox  v.  Roath,  12 
Conn.  550,  556  ;  Hoit  v.  Underbill,  9  N.  H.  436,  439  ;  Smith  v.  Kelley.  13 
Met.  309, 310  ;  Benham  v.  Bishop,  9  Conn.  330,  333  ;  Hinel y  »•.  Marguritz, 
3  Pa.  St.  428;  Millard  v.  Hewlett,  19  Wend.  301,  302  ;  Hodges  v.  Hunt, 

22  Barb.  150, 151 ;  Catlin  v.  Haddox,  49  Conn.  492,  497,  4'>8  ;  1 1  Am.  Rep. 
249,  251,  252 ;  Bigelow  v.  Grannis,  2  Hill,  120,   121.    But  see  note  to 
Tobey  v.  Wood,  123  Mass.  88;  25  Am.  Rep.  30;  Henry  v.  Root,  33 
!N.  Y.  526,  529,  and  cases  reviewed  ;  Lawson  v.  Lovejoy,  8  Greenl.  405 ; 

23  Am.  Dec.  526,  527. 

7  Boody  v.  McKenney,  23  Me.  517,  525. 

8  See  cases  cited  in  next  note. 

9  See  Boyden  v.  Boyden,  9  Met.  519,  521  ;  Boody  v.  McKenney,  23 
Me.  517,  525;    Aldrich  v.  Grimes,  10    N.  H.  194,  197;    Schouler  on 
Domestic  Relations,  §441.    And  compare  Henry  i\  Root,  33  N.  Y. 
526  ;  Farr  v.  Sumner,  12  Vt.  28,  32  ;  3G  Am.  Dec.  327- 

§  54.  Disaffirming  transaction. — Rescission  of  sale  be- 
fore majority.  A  sale  and  delivery  of  personal  prop- 
erty by  a  minor,  may  be  rescinded  by  the  minor  before 
arriving  at  full  age.1 

Restoration  of  property  or  consideration.  But  in  gen- 
eral, if  the  infant  rescinds  the  contract,  and  seeks  to 
recover  the  article  sold  by  him,  he  must  restore  the 
property  or  consideration  received,  before  he  can  main- 
tain his  action  for  the  property  sold.2 

Tender.  Yet  a  distinction  is  taken  in  this  respect 
between  executory  and  executed  contracts  made  by  an 


75  PARTIES.  \   55 

infant,  to  the  effect  that  in  the  latter  case  he  must,  in 
equity,  tender  before  suit  any  of  the  property  or  con- 
sideration still  retained  by  him.3 

Use  or  consumption.  But  it  is  generally  otherwise, 
where  the  infant  has  used  or  consumed  the  property  or 
consideration  during  his  minority.4 

Allowing  for  benefit.  It  is  stated  to  be  the  established 
rule  in  New  Hampshire,  however,  that  a  person  seek- 
ing to  avoid  his  purchase  of  articles  not  necessaries,  or 
other  contract,  on  the  ground  of  infancy,  must  restore 
what  he  has  received  under  it,  if  it  remains  in  specie 
and  under  his  control,  and  otherwise  must  allow  for  the 
benefit  derived  therefrom.5 

1  Carr  v.  Clough,  26  N.  H.  280 ;  59  Am.  Dec.  345,  347,  340.    And  see 
Robinson  v.  Weeks,  53  Me.  102, 106  ;  Vent  v.  Osgood,  19  Pick.  572,  57.5 ; 
2  Kent  Com.  277,  n. ;  Bool  v.  Mix,  17  Wend.  119  ;  31  Am.  Dec.  285,  291 ; 
Price  v.  Furman,  27  Vt.  508  ;  65  Am.  Dec.  194, 195. 

2  Carr  v.  Clough,  26  N.  H.  280  ;  59  Am.  Dec.  345,  349.    And  see 
Badger  v.  Phinney,  15  Mass.  359  ;  8  Am.  Dec.  105, 108  ;  Farr  v.  Sumner, 
12  Vt.  28 ;  36  Am.  *Dec.  327,  328  ;  Taft  v.  Pike,  14  Vt.  405  ;  39  Am.  Dec. 
228,  230 ;  Kitchen  v.  Lee,  11  Paige,  107;  42  Am.  Dec.  101, 102  ;  Manning 
v.  Johnson,  26  Ala.  446;  62  Am.  Dec.  732,  733,  and  exhaustive  note, 
7*1 ;  Price  v.  Furman,  27  Vt.  268  ;  65  Am.  Dec.  194,  196  ;  Bingharn  v. 
Barley,  55  Tex.  281 ;  40  Am.  Rep.  801,  802. 

3  Eureka  Co.  v.  Edwards,  71  Ala.  2 18  ;  46  Am.  Rep.  314,  315. 

4  Eureka  Co.  v.  Edwnrds,  71  Ala.  248  ;  46  Am.  Rep.  314,  316.    And 
see  Brantley  v.  Wolf,  60  Miss.  420,  43?. 

5  See  Heath  v.  Stevens,  43  N.  H.  251,  252 ;  Hall  v.  Butterfield,  59 
N.  H.  354  ;  47  Am.  Rep.  209, 213,  215  ;  Bartlett  v.  Bailey,  59  N.  H.  408, 409. 

§  55.  Married  women  at  common  law.  —  General  rule. 
At  common  law.,  it  is  the  general  rule  that  the  contracts 
of  married  women  are  not  merely  voidable,  but  abso- 
lutely void,1  so  that  they  cannot  be  ratified  even  when 
the  coverture  has  ceased.2  Hence,  a  married  woman 
cannot  make  a  valid  purchase  on  her  own  account; 
even  for  necessaries,  although  she  is  living  apart  from 
her  husband,  and  has  a  separate  maintenance  by  deed.3 

Exceptions.  But  there  are  exceptions  to  the  rule, 
which  are  variously  stated,  but  which  may  be  broadly 
declared  to  arise  when  the  husband  is  regarded  as 


§  56  PARTIES.  76 

civilly  dead,4  as  when  he  has  abjured  the  realm,  or  has 
been  banished,5  or  transported  as  a  convict ; 6  when  he 
is  an  alien  and  resident  abroad;7  and  by  the  custom 
of  London,  when  the  wife  is  a  sole  trader.8  In  this 
country  the  exception  arising  when  the  husband  has 
abjured  the  realm,  etc.,  has  been  applied  in  all  cases  in 
which  the  husband  has  abandoned  and  deserted  his 
wife  and  accepted  an  abode  or  residence  in  another 
State  or  jurisdiction.8 

1  Zouch  v.  Parsons,  3  Burr.  1704, 1805 ;  Swell's  Lead.  Cas.  3, 14. 
And  see  Kelso  v.  Tabor,  f.2  Barb.  125, 128. 

2  See  citations  in  last  note. 

3  Marshall  v.  Button,  8  Term  Rep.  545.    See,  also,  2  Kent  Com. 
ICO  ;  Hyde  r.  Price,  3  Vcs.  Jr.  4:J1,  445  ;  Lewis  v.  Lee,  3  Barn.  <fc  C.  2.;i, 
2j7.    Married  women's  necessaries  :  See  Priest  v.  Cone,  51  Vt.  4:;5  ;  31 
Am.  Bep.  6J5,  n.  697. 

4  See  Robinson  v.  Reynolds,  1  Aiken,  174  ;  2  Kent  Com.  155,  n. 

5  See  1  Blackst.  Com.  443. 

6  Ex  parte  Franks,  7  Bing.  762;  Sparrow  v.  Carruthers,  1  Term 
Rep.  6,  n.  ;  Carroll  v.  Blancow,  4  Esp.  27. 

7  Derry  v.  Mazarine,  1  Raym.  Ld.  147;  Burfleld  v.  De  Pienne,  2 
Bos.  &  P.  N.  R.  3&0,  381.    And  see  De  Gaillon  v.  L'Ai-le,  8  Bos.  &  P. 
o.37.    But  compare  Kay  v.  Duehessee  de  Pienne,  3  Camp.  123  ;  Wil- 
ILimson  v.  Dawes,  9  Bing.  232 ;  Farrar  v .  Countess  of  Granard,  1  Bos.  <fe 
P.  80,81 ;  Marsh  v.  Hutchinson,  2  Bos.  &  P.  226;  Baggett  v.  Frier,  11 
East,  301,  303;  Bardcn  v.  Keverberg,  2  Moes.  &  W.  61;  De  Wahl  v. 
Braune.  1  Hurl.  &  N.  173  ;  2  Kent  Com.  157  ;  Robinson  v.  Reynolds, 
1  Aiken,  174, 177. 

8  Beard  v.  Webb,  2  Bos.  &  P.  93.    And  see  §  58,  on  SOLE  TRADERS 
BY  CUSTOM. 

9  Phelps  v.  Walther,  78  Mo.  320;  47  Am.  Rep.  112;  citing  other 
local  cases  ;  and  Abbott  v.  Bayley,  6  Pick.  89  ;  Gregory  t..  Pierce,  4 
M'.^t.  473;  Gregory  v.  Paul,  15  Mass.  31;  Cornwall  v.  Hoyt,  7  Conn. 
427  ;  Osborn  r.  Nelson,  59  Barb.  375  ;  Beau  v.  Morgan,  4  McCord,  K8  ; 
C  lark  r.  Valentine,  41  Ga.  113;  Roland  v.  Logan,  18  Ala.  307  ;  Love  v, 
Moynehan,  16  111.  277;  Rhea  v.  Rhenner,  1  Peters,  103.    But  it  has 
b^en  held  that  the  husband's  desertion  alone  will  not  render  the 
wife  liable  even  for  necessaries :  Hayward  v.  Barker,  52  Vt.  429 ;  36 
Am.  Rep.  762,  n.  764. 

§  56,  111  equity.  —  British  rule.  The  British  rule  in 
equity  is  that  a  married  woman  may  bind  her  separate 
property,  though  not  in  advance  of  her  acquisition  of 
the  same,1  whether  by  ordering  goods  or  otherwise,2  if 
she  has  purported  and  intended  to  contract,  and  was 
understood  by  the  other  party  to  contract,  not  for  her 


77  PARTIES.  §   57 

husband,  but  for  herself,  and  on  the  credit  of  her 
separate  estate.3 

Intention  inferable.  Such  intention  need  not  be  ex- 
pressed, but  may  be  inferred  from  the  nature  of  the 
contract  itself,4  and  is  readily  inferred  if  the  mar- 
ried woman  is  at  the  time  living  separate  from  her 
husband.5 

American  views.  Similar  views  are  laid  down  in 
some  of  the  cases  in  New  York,6  New  Jersey,7  and  Con- 
necticut.8 But  the  general  current  of  American  author- 
ities supports  the  principle  that  the  separate  estate  of  a 
married  woman  is  not  chargeable  with  her  debts  and 
obligations,  unless  where  a  provision  for  that  purpose  is 
contained  in  the  instrument  creating  her  separate  estate.9 

1  Pike  v.  Fitzgibbon,  Law  R.  17  Ch.  D.  454. 

2  See  cases  next  cited. 

3  Mrs.  Matthewman's  Case,  Law  R.  3  Eq.  781, 787.    And  see  Picard 
v.  Hine,  Law  R.  5  Ch.  App.  274 ;  Shattock  v.  Shattock,  Law  R.  2  Eq. 
182  ;  Johnson  v.  Gallagher,  30  Law  J.  Ch.  298  ;  Butler  v.  Cumpston, 
Law  R.  7  Eq.  16,  21  ;  La  Touche  v.  La  Touche,  3  Hurl.  &  C.  576. 

4  Mrs.  Matthewman's  Case,  Law  R.  3  Eq.  781,  787  ;  Picard  v. 
Hine,  Law  R.  5  Ch.  App.  274,  277  ;  London  Chartered  Bank  v.  Lem- 
priere,  Law  B.  4  P.  C.  App.  572,  593. 

5  Picard  v.  Hine,  Law  B.  5  Ch.  App.  274,  277. 

6  Bank  of  Watkins  v.  Miller,  63  N.  Y.  639.    But  compare  Yale  v. 
Pederer,  68  N.  Y.  329, 335 ;  Kelly  on  Contracts  of  Married  Women,  461. 
And  see  Manchester  v.  Sahler,  47  Barb.  155,  157  ;  Kelso  v.  Tabor,  52 
Barb.  125,  128  ;  Bogert  v.  Gulick,  65  Barb.  322,  324  ;  Lennox  v.  Eldred, 
65  Barb.  410,  412 ;  Downing  v.  O'Brien,  67  Barb.  582, 584  ;  Conlin  v.  Can- 
trell,  64  N.  Y.  217  ;  Qosman  v.  Cruger,  69  N.  Y.  87. 

7  See  Johnson  v.  Cummings,  16  N.  J.  Eq.  97,  104.    But  compare 
Armstrong  v.  Ross,  20  N.  J.  Eq.  109, 119  ;  Kelly  on  Contracts  of  Mar- 
ried Women,  451,  452. 

8  Wells  v.  Thorman,  37  Conn.  318,  319.    And  see  Craft  v.  Ralland, 
37  Conn.  491,  498  ;  Kelly  on  Contracts  of  Married  Women,  340. 

9  Willard  v.  Eastham ,  1 5  Gray,  328, 332,    Consult  further,  Schouler 
on  Husband  and  Wife,  §  246. 

\  67.  Under  statutes,  — English  Married  Women's  Acts. 
Legislation  of  recent  origin  in  England,  even  prior  to 
the  latest  comprehensive  enactment  on  the  subject,1 
had  modified  the  strict  rules  of  the  common  law,  and 
empowered  a  wife  deserted  by  her  husband  to  obtain  an 


I  57  PARTIES.  78 

order  to  protect  and  dispose  of  her  earnings  and  property 
as  if  she  were  judicially  separated,2  while  the  Married 
Women's  Property  Act  of  1870  provided  for  her  separate 
trading  and  control  of  her  acquisitions  and  investments.3 
Accordingly,  where  a  butcher  was  afflicted  with  delir- 
ium tremens,  his  wife,  who  carried  on  her  husband's 
business  upon  her  separate  resources,  without  objec- 
tion on  his  part,  could  buy  meat  upon  her  own  credit 
free  from  liability  for  her  husband's  debts ;  *  and  so  a 
woman  who  after  her  marriage  continued  her  fruit-pre- 
serving business  in  her  maiden  name,  and  established 
it  on  a  wholesale  basis,  would  on  becoming  a  widow  be 
protected  against  the  administrator  of  her  late  hus- 
band.5 And  now  under  the  English  Married  Women's 
Property  Act  of  1882  wives  are  enabled  to  acquire,  hold, 
and  dispose  of  every  species  of  property,6  are  allowed 
to  contract,  sue  and  be  sued  apart  from  their  hus- 
bands, are  made  subject  to  the  bankruptcy  laws  in 
their  separate  business,7  and  are  protected  as  before  in 
their  wages  and  earnings  and  in  the  proceeds  of  tLeir 
skill,  as  well  as  in  their  dealings  in  corporate  shares  of 
stock  and  other  investments.8 

American  enactments.  Like  enactments  have  been 
passed  in  many  of  the  United  States,9  in  some  of  which 
a  married  woman  may  make  contracts  for  necessaries 
to  be  furnished  to  herself  and  family,  and  may  sue  and 
be  sued  thereon,  in  the  same  manner  as  if  she  were 
sole,10  while  in  a  large  number  of  the  States  the  wife's 
power  to  trade  on  her  own  account  has  been  enlarged 
and  more  fully  established,  so  that  the  profits  of  her 
business  are  secured  to  her  sole  and  separate  use.11 

1  Carried  Women's  Property  Act  of  1882  ;  45,  46  Viet.  ch.  75. 

2  See  20,  21  Viet.  ch.  85,  ??  21,  26  ;  also  21,  22  Viet.  ch.  108,  \\  8-10; 
Ramsden  v.  Brearley,  Law  B.  10  Q.  B.  147. 

3  Act  of  1870,  33,  34  Viet.  ch.  93  ;  Summers  v.  City  Bank,  Law  K.  9 
Com.  P.  580. 


79  PARTIES.  §  58 

4  Lovell  v.  Newton,  Law  B.  4  C.  P.  D.  7. 

5  Ashworth  v.  Outram,  Law  B.  5  Ch.  D.  923.    See  Schouler  on 
Husband  and  Wife,  §  308. 

6  Compare  prior  ruling  in  Pike  v.  Fitzgibbon,  Law  B.  17  Ch.  D.  454. 

7  Previously  otherwise  :  Ex  parte  Jones,  Law  B.  12  Ch.  D.  484. 

8  See  45,  46  Viet.  ch.  75  ;  discussed  in  17  Am.  L.  Bev.  555 ;  22  Am. 
Law  Beg.  761.    Construction  of  Act:  See  Biddell  v.  Errington,  Law 
B.  26  Ch.  D.  220. 

9  See  Kelly  on  Contracts  of  Married  Women,  260-285. 

10  See  Labaree  v.  Colby,  99  Mass.  559,  560  ;  Gordon  v.  Dix,  106  Mass. 
305,  306. 

11  Schouler  on  Husband  and  Wife,  \  309.    And  see  \\  58,  59,  on 
SOLE  TRADERS,  etc. 

I  58.  Sole  traders  by  custom.  —  Custom  of  London  and 
its  adoption.  By  the  custom  of  London,  which  has 
been  practically  adopted  in  South  Carolina,1  and  util- 
ized under  legislation  in  other  States,  as  Maine2  and 
Pennsylvania,3  a  wife  could  be  a  trader  on  her  own  ac- 
count, and  like  her  husband,  could  be  declared  a  bank- 
rupt, or  subjected  to  arrest  and  imprisonment  for  debt.4 

Scope  of  custom.  She  was  permitted,  with  his  assent, 
not  only  to  carry  on  a  trade  separate  from  him,  but  to 
assume  a  personal  responsibility  on  her  contracts,  and, 
indeed,  to  acquire  all  the  rights  ofafemme  sole  in  respect 
thereto  ; 5  but  it  was  required  that  her  husband  should 
be  made  a  nominal  party  in  all  suits  brought  by  and 
against  her,  although  the  judgment  did  affect  him.6 

Restrictions  where  custom  prevails.  But  where  the 
custom  prevails,  the  wife  must  be  technically  a  trader,7 
and  the  contract  must  relate  to  the  trade.8 

1  Diall  v.  Neuffer,  3  Bich.  78  ;  Hobart  v.  Lemon,  3  Bich.  121 ;  Wil- 
thaus  ?>.  Ludicus,  5  Bich.  326  ;  McGrath  v.  Bobertson,  1  Desaus.  445  ; 
Newbiggin  v.  Pillans,  2  Bay,  162  ;  McDaniel  v.  Cornwall,  1  Hill,  428  ; 
State  v.  Collins,  1  McCord,  355  ;  McDowell  v.  Wood,  2  Nott  &  McC. 
242  ;  City  Council  v.  Van  Boven,  2  McCord,  465. 

2  See  Colby  v.  Lamson,  39  Me.  119 ;  Oxnard  v.  Swanton,  39  Me. 
125. 

3  Burke  v.  Winkle,  2  Serg.  &  B.  189  ;  Jacobs  v.  Featherstone,  6 
Watts  &  S.  346. 

4  Beard  v.  Webb,  2  Bos.  &  P.  97.    And  see  2  Boper  on  Husband 
and  Wife,  124 ;  Schouler  on  Husband  and  Wife,  §  300. 

5  See  citations  in  next  note. 


§   59  PAKTIES.  80 

6  Bacon's  Abr.  tit.  Baron  and  Feme  (M.) ;  Beard  v.  Webb,  2  Bos. 
&  P.  97;  Caudell  r.  Shaw,  4  Term  Bep.  361 ;  Schouler  on  Husband 
and  Wife,  \  300. 

7  Ewart  ?-.  Xagel,  1  McMull.  50,  51 ;  Bobards  v.  Hutson,  3  McCord. 
475 ;  McDaniels  v.  Cornwell,  1  Hill,  428,  420. 

8  McDowell  v.  Wood,  2  Nott  &  McC.  242. 

$  59.  Separate  trading  under  special  enactments. — 
Prevalence  of  separate  trading.  The  separate  trading 
of  the  wife  has  been  authorized  by  statutory  provisions, 
and  even  sometimes  by  private  acts,1  in  New  York, 
New  Jersey,  Maine,  New  Hampshire,  Massachusetts, 
Connecticut,  Iowa,  Wisconsin,  Kansas,  Illinois,  Ar- 
kansas, California,  and  other  States.2 

Effect  of  enactments.  The  effect  of  these  enactments 
is  to  enable  the  wife  to  act  as  "free  dealer"  or  "sole 
trader,"3  and  to  use  her  separate  property  therefor, 
and  even,  in  some  States,  to  enter  into  a  general  part- 
nership for  trade.4  But  the  mere  fact  that  a  married 
woman,  with  the  knowledge  and  consent  of  the  hus- 
band, enters  into  a  copartnership,  does  not  make  the 
husband  liable  for  debts  of  the  firm  contracted  during 
her  membership.5  In  general,  what  the  wife  acquires 
under  these  statutes  is  declared  to  be  exempt  from  lia- 
bility for  her  husband's  debts,  and  not  subject  to  his 
control  or  interference.6 

When  acts  held  inapplicable.  Some  of  the  sole  traders' 
acts  have  been  held  inapplicable  where  the  ground  of 
the  application  is  merely  the  insolvency  of  the  hus- 
band,7 or  his  temporary  inability,  through  sickness,  to 
support  his  wife.8  So  under  none  of  the  acts  relating 
to  femme  sole  traders  in  Pennsylvania  can  a  married 
woman  be  sued  for  debts  which  were  neither  contracted 
for  necessaries,  nor  in  the  course  of  her  business  as  a 
femme  sole  trader.9  But  where  a  married  woman  who 
has  applied  for  and  received  the  benefits  of  a  statute 
concerning  her  separate  earnings,  and  has  subse- 


81  PARTIES.  §   59 

quently  engaged  in  business  under  its  sanction,  does 
not  thereby  become  a  femme  sole  trader,10  she  is  liable, 
nevertheless,  upon  her  contracts  made  in  the  prosecu- 
tion of  such  business,  such  as  for  the  services  of  a  bar- 
keeper, as  if  she  were  afemme  sole.11 

1  Halladay  v.  Jones,  57  Ala.  525. 

2  Schoulor  on  Husband  and  Wife,  §  300.    But  this  system  has 
been    repudiated    in    North  Carolina:  McKinnon  v.  McDonald,  4 
Jones  Eq.  1. 

3  Newbrick  v,  Dugan,  61  Ala.  251. 

4  Schouler  on  Husband  and  Wife,  \  309. 

5  Burgan  v.  Gaboon,  noted  14  Cent.  L.  J.  259  ;  Sup.  Ct.  Pa.  Nov.  7, 
1881. 

6  Schouler  on  Husband  and  Wife,  \  309. 

7  Moran  v.  Moran,  12  Bush,  301. 

8  King  v.  Thompson,  87  Pa.  St.  365. 

9  Bell  ?'.  Ladd,  14  Phila.  16^,  IfiO.    And  see  Cleaver  v.  Sheets, 70  Pa. 
St.  496.    Compare  Hubert  v.  Seymour,  14  Phila.  1,  2. 

10  Bovard  v.  Kittering,  101  Pa.  St.  181, 183. 

11  Bovard  i».   Kittering,  101  Pa.  St.  181,  184.     And  may  be  sued 
thereon  without  joining  her  husband  :  Bovard  v.  Kittering,  101  Pa. 
St.  181,  134. 


60  PRICE.  82 


CHAPTER   V. 

PRICE. 

?  60.  In  general. 

2  Gl.  Determination  where  not  fixed. 

\  62.  Valuation  by  third  person. 

\  63.  Reasonable  price. 

\  64.  Payment  in  chattels. 

\  Go.  Payment  in  negotiable  paper. 

§  60.  In  general.  —  Essential  feature  cf  sale.  The 
price  is  an  essential  ingredient  in  the  contract  of  sale.1 
In  fact,  the  distinguishing  feature  of  a  sale  is  a  price  for 
the  goods,  or  a  stipulation  by  which  the  price  can  be 
fixed.2  And  the  price  named  by  the  seller  must  be 
agreed  to  by  the  buyer,3  though  a  grumbling  assent 
may  be  sufficient.4 

Money  or  other  equivalent.  Generally  speaking,  there 
can  be  no  sale  without  a  price  in  money.5  But  a  sale 
has  been  denned  as  a  transfer  of  property  for  a  valuable 
consideration  ; 6  and  it  has  been  pointed  out  that  the  price 
may  mean  the  equivalent  or  compensation  in.  whatever 
form  received,  for  property  sold.7 

Mode  of  payment.  And  some  of  the  cases  declare 
that  if  property  is  taken  at  a  fixed  money  price,  the 
transfer  amounts  to  a  sale,  whether  the  price  is  paid  in 
cash  or  in  goods.8  So  the  negotiable  representatives  of 
money,  as  bills  and  notes,  etc.,  may  be  taken  as  the  ^ 
payment  of  the  price.9 

Real  and  fixed  or  ascertainable.  The  price  must  be 
real,  ajid  not  merely  nominal  ;10  and  it  must  be  fixed, 
or  be  susceptible  of  being  ascertained  in  the  mode  pre- 
scribed by  the  contract,  without  further  negotiation 
between  the  parties ; n  nor  when  the  price  is  to  be  sub- 


83  PRICE.  I  60 

sequently  fixed  by  means  agreed  upon,  is  there  a  per- 
fect sale  or  delivery  until  the  price  is  so  fixed.12 

Sufficiency  of  consideration.  The  liability  of  the  buyer 
of  a  chattel  as  surety  on  the  seller's  note,  or  the  dis- 
charge of  a  debt  due  from  the  seller  to  the  buyer,  is  a 
sufficient  consideration  for  the  sale  of  such  chattel.13 

Evidence  of  value.  Evidence  is  competent  which  tends 
to  prove  that  the  property  is  worth  the  price  charged 
in  an  open  account  upon  which  suit  is  brought.14 

Inadequacy  of  price.  A  sale  or  other  contract  will 
not  be  disturbed  even  in  equity 15  for  mere  inadequacy 
of  price,  unless  the  price  obtained  is  so  grossly  in- 
adequate as  to  amount  to  a  fraud  or  imposition.16 

1  2  Kent  Com.  477.    And  see  Kleinpeter  v.  Harrison,  21  La.  An.  196, 
197  ;  Fuller  v.  Bean,  34  N.  H.  290,  804  ;  Flagg  v.  Mann,  2  Sum.  436,  539. 

2  See  Schenck  v.  Saunders,  13  Gray,  37,  41. 

3  See  Gardner  v.  Lane,  12  Allen,  39,  43. 

4  Joyce  v.  Swann,  17  Com.  B.  N.  S.  84, 101, 103. 

5  See  Wolf  v.  Wolf,  12  La.  An.  529 ;  and  definitions  in  \  1.    There 
must  be  money  paid  or  promised  :  See  Williamson  v.  Berry,  8  How. 
405.  544.    Price  is  the  consideration  in  money  given  for  the  purchase 
of  u  thing :  2  Bouvier  Law  Diet.  (15th  ed.)  457. 

6  2  Kent  Com.  468.    And  see  Howard  v.  Harris,  8  Allen,  296,  299. 
See  \  4,  on  CONSIDERATION. 

7  Hudson  Iron  Co.  v.  Alger,  54  N.  Y.  173, 177. 

8  Picard  v.  McCormick,  11  Mich.  68,  77.    And  see  §  11,  on  SALE  OB 
EXCHANGE. 

9  See  Bonnell  v.  Chamberlain,  26  Conn.  487,492  ;  Wallace  ?».  Agry, 
4  Mason,  336,  342.    And  consult  chapter  on  PAYMENT. 

10  2  Kent  Com.  477.    And  see  2  Bouvier  Law  Diet.  (15th  ed.)  457. 

11  2  Kent  Com.  477.    And  see  Brown  v.  Bellows,  4  Pick.  179,  189  ; 
Cunningham  v.  Ashbrook,  20  Mo.  553,  559. 

12  Hutton  v.  Moore,  26  Ark.  382,  304.    And  see  Wittkowsky  v.  Was- 
son,  71  N.  C.  451,  456. 

t     13    Fletcher  v.  Howard,  2  Aiken,  115  ;  16  Am.  Dec.  686,  687. 

14  TTillebrand  r.  Wittkempor,  70  Ind.  180,  182.     Price  and  value 
discussed  :   Kountz  r.  Kirkpatrick,  72  Pa.  St.  376,  386.    And  see  Norton 
v.  Willis,  73  Me.  580,  581 ;  Fry  v.  Tilton,  11  Neb.  456,  459. 

15  See  2  Kent  Com.  477,  n. 

16  See  Carman  ?'.  Page,  6  Jones  Eq.  37,  40  ;  Duncan  r.  Saunders,  50 
111.  475, 476  ;  Waller  v.  Cralle,  8  Mon.  B.  8, 14  ;  Follett  v.  Rose,  3  McLean, 
332,  335. 


I  61  PRICE.  84 

\  61.  Determination  where  not  fixed.  —  Need  of  specifi- 
cation. By  the  civil  as  well  as  the  common  law,  the 
specification  of  a  price  is  necessary  to  constitute  a  sale.1 
And  it  is  laid  down  by  some  authorities  that  where  a 
contract  is  executory  and  not  executed,  it  is  incomplete 
and  not  binding  on  the  purchaser,  unless  the  price  is 
fixed  distinctly  according  to  some  standard,  either  of 
amount,  or  of  market,  or  of  reasonableness,  or  some 
other  method  of  ascertainment.2  But  there  need  not  be 
an  express  assent  to  the  price  named  by  the  seller,  if  it 
is  adopted  by  the  buyer,  even  under  protest.3 

Price  ascertainable  from  contract.  And  a  contract  of 
sale  is  not  invalid,  at  least  under  the  common  law, 
because  it  does  not  in  terms  fix  the  price,  if  it  furnishes 
a  criterion  for  determining  the  same,  leaving  nothing 
in  relation  thereto  for  further  negotiation  between  the 
parties  : 4  as  where  the  amount  of  the  price  is  dependent 
on  the  exercise  of  an  option  by  the  buyer,  and  the  time 
for  its  exercise  is  not  limited  by  the  contract.5 

Something  remaining  to  be  done.  But  if  anything  re- 
mains to  be  done  as  between  the  parties  themselves,  for 
the  purpose  of  ascertaining  the  price,  such  as  weighing  or 
measuring  the  goods,  it  is  a  current  doctrine  that  the  title 
does  not  pass,6  although  the  subject-matter  of  the  con- 
tract is  placed  in  the  possession  of  the  buyer.7  So  where 
the  price  is  based  on  an  inventory  to  be  corrected,  it  has 
been  held  that  the  title  does  not  pass  until  after  the  in- 
ventor}7"  is  verified  as  stipulated.8 

Failure  of  parties  to  agree  upon.  And  there  cannot 
be  an  executed  sale,  so  as  to  pass  the  property,  where  the 
price  is  to  be  fixed  by  agreement  between  the  parties 
afterwards,  and  they  do  not  subsequently  agree  thereon.9 

Additional  act  requisite.  Yet  the  price  is  sufficiently 
settled  where  the  terms  are  so  fixed  that  the  sum  to  be 
paid  can  be  ascertained  by  weighing,  without  further 


85  PRICE.  \  62 

reference  to  the  parties  themselves.10  And  there  is  a 
perfect  ascertainment  of  the  price  by  measurement  of 
timber  trees,  despite  an  omission  to  add  up  the  contents 
of  the  separate  trees.11 

1  Scott  ?'.  WHls.  fi  Watts  &  S.  357,  366.    And  see  Flagg  v.  Mann,  2 
Sum.  48(5,  o:«);  KJeinpetor  v.  Harrison,  21  Lu.  An.  196,  U7  ;  Bigley  v. 
Itisher,  63  Pa.  St.  152,  155. 

2  See  James  v.  Muir,  33  Mich.  223,  227. 

3  Joyce  v.  Swann,  17  Com.  B.  N.  S.  84, 101. 

4  McConnell  v.  Hughes,  29  Wis.  537,  540.    And  see  Cunningham  v. 
Ashbrook,  20  Mo.  5.73;  Valpy  v.  Gibson,  4  Com.  B.  837,  86-1  ;  James  v. 
Muir,  :tf  Mich.  223,  227. 

5  McConnell  r.  Hughes,  29  Wis.  537,  540.     Price  varying   with 
value  of  gold  :  Ames  v.  Quimby,  96  U.  S.  324. 

6  -See  Fuller  v.  Bean,  34  N.  H.  2!)0,  302. 

7  See  Andrews  v.  Dieterich,  14  Wend.  31,  35 ;  Ward  v.  Shaw,  7 
WiMid.  404;  Kourke  v.  Bullens,  8  Gray,  549.    And  compare  Davis?'. 
Hill,  3  N.  H.  3S2  ;  Simmons  v.  Swift,  5  Barn.  &  C.  857,  863  ;  Langclell's 
Cases  on  Sales,  65!) ;  Devane  v.  Fennell,  2  Ired.  36,  37. 

8  Sherwin  r.  Mudge,  127  Mass.  547. 

9  Wittkowsky  v.  Wasson,  71  N.  C.  451,  456. 

10  Cunningham  v.  Ashbrook,  20  Mo.  553,  559. 

11  Tansley  v.  Turner,  2  Scott,  238,  241. 

$  62,  Valuation  by  third  person.  —  Decision  effective. 
The  price  may  be  left  to  the  decision  of  some  third 
person,  as  an  arbitrator,  referee,  or  other  appraiser;1 
since  under  the  rule  that  the  price  must  be  certain,  it  is 
sufficient  if  the  price  can  be  made  certain  ; 2  and  if  such 
third  person  fix  the  price,  the  sale  should  be  carried 
i»to  effect.3 

No  sale  until  valuation  made.  But  until  the  price  is 
so  fixed  by  the  means  agreed  upon,  there  is  no  such 
contract  as  amounts  to  a  perfect  sale  or  delivery.4  And 
if  one  of  the  parties  obstructs  the  valuation,  as  by  re- 
tusing  to  allow  the  valuer  appointed  by  him  to  proceed 
with  the  valuation,  there  is  no  contract  which  can  be 
specifically  enforced  ;5  though  when  the  valuers  named 
by  the  parties  have  not  agreed  upon  the  value,  but  the 
subject  of  the  negotiation  has  been  consumed  by  the 
prospective  purchaser,  so  that  a  valuation  is  impossible, 
NEWMARK  SALES. —  8. 


§  63  PRICE.  86 

he  is  liable  for  the  reasonable  worth  of  the  things  so 
consumed.6 

Estimate  binding.  On  a  sale  and  delivery  of  lumber, 
where  it  is  a  part  of  the  agreement  between  the  parties 
that  the  quantity  and  quality  shall  be  estimated  by  a 
third  person  named,  his  estimate  is  binding,  unless  im- 
peached for  fraud  or  mistake.7  And  when  a  party  sold 
a  quantity  of  hay  to  another,  to  be  paid  for  at  an  agreed 
price  per  ton,  in  a  particular  mode,  when  the  quantity 
should  be  ascertained  by  persons  they  might  choose, 
and  persons  were  selected  and  the  amount  determined 
and  reported  by  them,  it  was  held  that  at  law  a  mistake 
in  their  estimate  could  not  be  shown,  though  their 
determination  might  be  questioned  for  fraud.8 

1  See  Brown  v.  Bellows,  4  Pick.  179, 189  ;  Fuller  v.  Bean,  34  N.  H. 
290  ;  Hutton  v.  Moore,  26  Ark.  382. 

2  See  Fuller  v.  Bean,  34  N.  H.  290,  304  ;  Brown  r.  Bellows,  4  Pick. 
179,  189  ;  2  Bouvier  Law  Diet.  (15th  ed.)457;  Wittkowsky  v.  Wasson, 
71  N.  C.  451,  456. 

3  Brown  v.  Bellows,  4  Pick.  179, 189. 

4  Hutton  v.  Moore,  26  Ark.  382,  394.    And  see  Fuller  v.  Bean,  34 
N.  H.  290,  304. 

5  Vickers  v.  Vickers,  Law  B.  4  Eq.  529,  535,  536.    But  compare, 
contra,  Hnmaston  v.  Telegraph  Co.  20  Wall.  20,  28  ;  Smyth  v.  Craig,  3 
Watts  &  S.  14,  20. 

6  Clarke  v.  Westrope,  18  Com.  B.  765,  785.    See  Wittkowsky  v. 
Wasson.71  N.  C.  451,456. 

7  Scott  v.  Whitney,  41  Wis.  504,  506.     And  see  Easterlie  v.  Ry- 
lander,  5(J  Ga.  202. 

8  Newlan  v.  Dunham,  60  111.  233,  235. 

I  63.  Reasonable  price.  —  Where  no  price  fixed.  A  con- 
tract for  the  sale  of  a  commodity,  in  which  the  price  is 
left  uncertain,  as  from  the  silence  of  the  parties,  is,  in 
law,  a  contract  for  what  the  goods  shall  be  found  to  be 
reasonably  worth.1  Hence,  when  goods  are  accepted, 
and  nothing  has  been  said  about  the  price,  a  reasonable 
price  has  been  recognized  as  correct.2 

Market  price.  And  where  one  party  requested  an- 
other, when  he  got  ready  to  shell  his  corn,  to  haul  it 


87  PRICE.  I  63 

to  his  warehouse,  and  the  former  would  make  it  satis- 
factory as  to  price,  and  the  corn  was  hauled  and  de- 
livered at  the  warehouse,  it  was  held  that  the  law  implies 
a  contract  to  pay  the  market  price  at  the  time  and  place 
of  delivery,  for  which  a  recovery  may  be  had.3  But  it 
has  been  substantially  laid  down  that  where  a  contract 
is  implied  at  a  reasonable  price,  this  means  such  a  price 
as  the  jury,  upon  the  trial  of  the  cause,  shall,  under  all 
the  circumstances,  decide  to  be  reasonable,4  and  not  in 
all  cases  the  current  price  of  the  commodity  at  the  time 
and  place  of  delivery.5 

By  agreement.  By  the  common  law,  the  price  is 
fixed  within  the  meaning  of  the  rule  requiring  it  to  be 
settled  before  there  is  a  sale,  even  when  it  appears  that 
the  parties  have  agreed  that  it  should  be  the  reason- 
able worth  of  the  thing  sold.6  And  on  a  delivery  of 
articles  in  consideration  of  being  paid  what  they  are 
worth,  which  constitutes  a  sale,  the  amount  recover- 
able is  what  the  articles  were  worth  at  the  time  of  the 
sale,  without  regard  to  their  subsequent  value.7 

Not  where  special  contract.  It  has  been  held  that 
where  an  article  is  sold  and  delivered  under  a  special 
contract,  in  which  the  price  is  fixed  by  the  parties,  that 
price  must  govern,  and  the  existence  of  a  conflict  in  the 
evidence  as  to  what  the  price  was,  does  not  authorize 
the  jury  to  allow  what  the  article  was  reasonably  worth.8 

1  Hoadley  v.  M'Laine,  10  Bing.  482,  487.    And  see  2  Blackst.  Com, 
443,  445  ;  Joyce  ?>.   Swarm,  7  Com.  B.  N.  8.  84,  104.     But  compare 
Acebal  v.  Levey,  10  Bing.  376,  384  ;  James  v.  Muir,  33  Mich.  223,  227. 

2  James  v.  Muir,  33  Mich.  223,  227, 

3  McEwen    v.  Morey,  GO    111.  32,  35,    And    compare  Fenton  v, 
Braden,  2  Crouch  C.  C.  550,  551. 

4  Acebal  v.  Levy,  10  Bing.  376,  383. 

5  Acebal   r.  Levy,  10  Bing.  376,  3S3.    And  see  James  v.  Muir,  33 
Mich.  223,  227  ;  Kountz  v.  Kirkpatrick,  72  Pa.  St.  376,  386. 

6  Cunningham  v.   Ashbrook,  20  Mo.  553,  559.    Leaving  it  to  the 
courts  to  ascertain  the  amount,  if  the  parties  cannot  agree  upon  it 
themselves:   Cunningham  v.   Ashbrook,  20  Mo,  553,  550.    And  see 
Wittkowsky  v,  Wasson,  71  N.  C,  451,  456. 


I  64  PRICE.  88 

7  Hill  ?;.  Hill,  Coxe.  261 ;  1  Am.  Dec.  206.    And  see  2  Bouvier  Law 
Diet.  (15th  ed.)  457. 

8  Illinois  Linen  Co.  v.  Hough,  91  111.  63,  65.    But  the  jury  must 
find  what  the  contract  price  really  was  from  the  evidence,  accord- 
ing to  its  weight  and  credibility  :  Illinois  Linen  Co.  v.  Hough,  91  111. 

§  64.  Payment  in  chattels,  —  Covenant  or  debt  as  rem- 
edy. In  general,  when  the  obligation  is  to  pay  money 
in  a  fixed  quantity  of  some  other  article,  the  authorities 
all  seem  to  agree  that  the  meaning  and  effect  of  the 
obligation  is  the  same  as  if  it  had  been  in  the  simple 
form  of  an  obligation  to  deliver  the  article,1  and  that 
covenant  is  the  proper  remedy.2 

Debt  as  remedy.  But  when  the  obligation  is  to  pay  a 
sum  of  money  in  Rome  other  article,  of  which  the 
quantity  is  not  fixed,  the  weight  of  authority  is  that 
debt  is  the  proper  remedy,3  though  in  some  of  the 
States  covenant  is  held  maintainable.4 

Optional  or  otherwise.  And  where  a  party  to  a  negoti- 
able instrument,  or  other  alleged  contract,  has  neglected 
to  exercise  an  option  to  pay  in  specific  chattels,  an 
action  is  maintainable  for  the  money  agreed  to  be  paid.5 
But  where  the  unfulfilled  promise  is  to  deliver  the 
specific  property  at  all  events,  the  correct  rule  is  that 
the  party  so  failing  to  carry  out  the  contract  is  liable  in 
damages  for  the  value  of  the  property.6 

1  Butcher  v.  Carlisle,  12  Gratt.  520,  522. 

2  Beirne  r.  Dunlap,  8  Leigh,  514 ;  Butcher  ?».  Carlisle,  12  Gratt.  520, 
522.    And  see  Weiss  v.  Manch  Chunk  etc.  Co.  58  Pa.  St.  295,  301. 

3  See  Bellinger  r.  Thurston,  2  Const.  S.   C.  447  ;  Bloomfield  v. 
Hancock,  1  Yerg.  101  ;   Young  ?'.   Hawkins,  4  Yerg.  171  ;  Henry  v. 
Gamble,  Minor,  15 ;  Bradford  v.  Stewart,  Minor,  44  ;  Beirne  v.  Dun- 
lap,  8  Leigh,  514. 

4  See  Watson  v.  McNairy,  1  Bibb,  35R  ;  Bruner  t>.  Kelsoe,  1  Bibb, 
4*7  :  Mattox  v.  Craig,  2  Bibb,  584  ;  Noe  ?'.  Preston,  5  Marsh.  J.  J.  57  ; 
Jeffrey  ?•.  Underwood,  1  Pike,  508.    Consult  Butcher  v.  Carlisle,  12 
Gratt.  520,  522. 

5  Cummings  v.  Dudley,  60  Cal.  383, 385.    And  see  Koberts  v.  Beatty, 
2  Pa.  63  ;  21  Am.  Dec.  424,  n. 

6  Cummings  v.  Dudley.  60  Cal.  383, 386.    And  see  3  Parsons  on  Con- 
tracts, 315;  Pinney  ?«.  Gleason,  5  Wend.  303  ;  21  Am.  Dec.  223.    Com* 
pare  White  v.  Tompkins,  52  Pa.  St.  3fi3,  365,  367. 


89  PRICE.  \  65 

I  65.  Payment  in  negotiable  paper.  —  Prima  facie  con- 
ditional. It  is  the  rule  of  the  common  law,  adopted  in 
many  of  the  States,  that  a  promissory  note  or  bill  of 
exchange  is  prima  facie  a  conditional  payment  only.1 

Prima  facie  absolute.  But  in  several  of  the  States, 
the  contrary  doctrine  obtains,2  and  the  taking  a  negoti- 
able promissory  note  or  bill  of  exchange  is  prima  facie 
to  be  deemed  an  absolute  payment,3  though  this  pre- 
sumption majr  be  rebutted  by  proof  of  a  different  in- 
tention ;4  and  it  is  said  to  be  a  question  of  fact,  on  the 
evidence,  whether  the  promissory  note  given  on  the 
one  hand  and  accepted  on  the  other,  was  in  satisfaction 
and  discharge  of  the  original  debt  or  not.5 

1  Wallace?'.  Agry,  4  Mason,  336, 343.    And  see  Bonn  ell  v.  Chamber- 
lin,  26  Conn.  487,  4J2  ;  Van  Ostrand  v.  Heed,  1  Wend.  424,  431. 

2  See  Wallace  v.  Agry,  4  Mason,  336,  342 ;  2  Daniel  on  Negotiable 
Instruments,  g  12GO. 

3  Reed  ?».  Upton,  10  Pick.  522,  525 ;  Ward  v.  Bourne,  56  Me.  1R1, 165. 
And  see  Wait  v.  Brewster,  31   Vt.  516,  527  ;  Chapman  v.  Durant,  10 
Mass.  47,  51, 11. ;  Costar  v.  Davies,  8  Ark.  213,  217. 

4  Reed  v.  Upton,  10  Pick.  522,  525.    And  see  Wallace  v.  Agry,  4 
Mason,  336,  342  ;  Melledge  v.  Boston  Iron  Company,  5  Cush.  158,  169. 

5  Melledge  v.  Boston  Iron  Co.  5  Cush.  158,  170.    Subject  further 
discussed :  2  Daniel  on  Negotiable  Instruments,  U 1261-1J7L 


§   66  THING  SOLD.  90 

CHAPTER  VI. 

THING   SOLD. 

2  66.  In  general. 

2  67.  Privilege. 

2  GS.  Existence. 

?  69.  After  acquired  property. 

2  66.  In  general.  —  As  requisite  of  sale.  One  of  the 
essential  elements  of  that  species  of  contract  called  a 
sale  is  a  thing  sold,  or  subject  of  transfer.1 

Capability  of  severance  from  realty.  And  property 
may  be  sold  as  personalty,  though  it  is  part  of  the  real 
estate,  if  it  is  capable  of  severance  therefrom.2 

What  may  not  be  sold.  But  no  property  belonging  to 
the  United  States  can  be  disposed  of,3  except  by  the 
authority  of  an  act  of  Congress.4  So  no  one  can  sell  a 
fund  in  court  as  such,  as  he  can  make  no  delivery 
thereof,  but  he  can  sell  only  his  interest  when  it  may 
be  adjusted.5  And  a  sale  or  transfer  by  one  corpora- 
tion of  all  its  property  to  another  corporation  organized 
out  of  it,  without  paying  all  the  debts  of  the  former 
corporation,  will  not  be  permitted  in  equity,  but  will  be 
treated  as  fraudulent  and  void  as  to  all  creditors  of 
the  former  corporation  not  assenting  thereto.6 

Property  included  in  sale.  A  contract  to  deliver  the 
entire  crop  of  cotton  which  a  party  might  make  during 
a  designated  year,  estimated  at  a  specified  number  of 
bales,  is  properly  construed  as  covering  whatever 
quantity  may  be  produced,  and  not  the  number  of 
bales  mentioned  in  the  contract.7  So  a  contract  to  pur- 
chase hotel  furniture  has  been  held  to  include  a  piano 
kept  in  the  parlor  for  the  use  of  guests.8  And  a  de- 
scription of  walnut  trees  in  an  agreement  to  sell  them 


91  THING  SOLD.  §   67 

has  been  held  sufficiently  definite  to  admit  parol  proof, 
fixing  the  identity  of  the  property  to  be  transferred.9 

1  See  2  Kent  Com.  468  ;  \  3,  on  ELEMENTS  OF  CONTRACT. 

2  Folsom  v.  Moore,  10  Mo.  252,  254.    And  see  Upson  ?>.  Holmes,  51 
Conn.  500,  503  ;  Dunkart  v.  Itineheart,  89  N.  C.  354,  358.    But  compare 
Dudley  v.  Foote,  18  The  Reporter,  631 ;  Sup.  Ct.  X.  H.  Aug.  28, 18b4  ; 
Cudy  v.  Sanford,  53  Vt.  632, 636. 

3  Under  U.  S.  Const,  art.  iv.  \  3. 

4  U.  S.  v.  Xicoll,  1  Paine,  64G. 

5  McCain  v.  Portis,  42  Ark.  402,  405.    And  In  the  adjustment  all 
parties  must  contemplate  that  it  will  be  subject  to  all  claims  prop- 
erly brought  to  the  notice  of  the  court,  as  an  attorney's  lieu  for  his 
fee  for  services  rendered  in  reference  to  the  fund:  McCain  v.  Portis, 
42  Ark.  402,405. 

6  Hibernia  Ins.  Co.  v.  St.  Louis  etc.  Transf.  Co.  4  McCrary,  432, 435, 
436 ;  13  Fed.  Kep.  516  ;  14  The  Reporter,  610. 

7  See  Bell  v.  Real  Estate  Banking  Co.  3  Ala.  77,  81. 

8  Grossman  v.  Baldwin,  49  Conn.  490 ;  16  The  Exporter,  107. 

9  Dunkart  v.  Rinehart,  89  N.  C.  354, 357 ;  18  The  Reporter,  56. 

§  67.  Privilege.  —  As  subject  of  sale  or  assignment. 
A  mere  privilege  may  be  the  subject  of  sale  or  assign- 
ment, if  the  purchaser  is  willing  to  run  the  risk  of  fail- 
ing to  enjoy  it.1 

Illustrations.  Thus,  there  may  be  a  sale  or  similar 
transfer  of  the  route  of  a  newspaper  carrier,2  of  the  good 
will  of  a  business,3  of  a  ferry  franchise,4  of  a  lease  of 
premises,5  of  a  seat  in  a  commercial  board  or  exchange,6 
of  a  license  to  manufacture  patented  machines,7  of  a 
secret  process  of  manufacture,8  of  a  copyright  to  print 
and  sell  a  manuscript,9  and  of  a  trade-mark  to  be  used 
in  connection  with  the  business  in  which  it  has  become 
established.10 

Newspaper  property.  But  it  has  been  held  that  a 
newspaper  subscription  list  is  not  the  subject  of  sepa- 
rate ownership,  but  is  a  mere  accessory,  which  passes 
on  a  sale  of  the  types,  presses,  etc.11 

1  Hathaway  t>.  Bennett,  10  N.  Y.  108,  112 ;  61  Am.  Dec.  739,  742. 
And  see  Barber  v.  Conn.  Mut.  Life  Ins.  Co.  15  Fed.  Rep.  312,  313,  and 
other  cases  next  cited.  Grant  of  mining  privilege:  Johnston  v. 
Cowan,  5f>  Pa.  St.  275,  280.  Knowledge  of  locality  of  oil  spring  :  Reed 
v.  Gorden,  28  Kan.  632 ;  42  Am.  Rep.  160. 


§   68  THING   SOLD.  92 

2  Hathaway  v.  Bennett,  10  N.  Y.  108  ;  61  Am.  Doc.  739.    But  the 
sale  of  such  route  by  one  carrier  to  another,  gives  the  purchaser  no 
right  to  maintain  an  action  against  the  proprietor  for  refusing  to 
furnish  him  with  papers  for  the  purchased  route,  despite  various 
acts  of  recognition  of  the  carrier  by  the  proprietor:   Hathaway  r. 
Bennett,  10  N.  Y.  108.    See,  also,  Senter  v.  Davis,  38  Cal.  450 ;  Fallen 
v.  Chronicle  Pub.  Co.  1  McAr.  485. 

3  Barber  r.  Conn.   Mut.  Life  Ins.  Co.  15  Fed.   Rep.  312,  n.   315; 
Herefort  r.  Cramer,  7  Colo.  483 ;  15  The  Reporter,  fisi,582:  Walling- 
ford  v.  Burr,  17  Neb.  1*7, 138,  139.    And  see  Bergamini  r.  Bastian,  35 
La,  An.  60;  48  Am.  Rep.  21(5,  n.  223.     Good  will  also  discussed:   19 
Cent.  L.  J.  362  ;  14  Am.  Law  Reg.  N.  S.  1,  329,  64J,  713. 

4  See  Montgomery  v.  Multnomah  County,  11  Or.  344,  &52 ;  3  Pac. 
Rep.  4:>5,  440. 

5  See  Tweed  v.  Mills,  Law  R.  1  Com.  P.  39  ;  McGuire  v.  Wright,  18 
W.  Va.  507. 

6  Clute  v.  Loveland,  9  Pacif.  Rep.  133,  n.  138  ;  Sup.  Ct.  Cal.  Dec.  23, 
1835.    And  see  Allen  r.  Wotherspuii,  50  N.  Y.  Super.  Ct.  417.    Subject 
discussed  :  20  Cent.  L.  J.  444. 

7  Compare  Brooks  r.  Bvnm.  2  Story,  525  ;  Tabor  v.  Peters,  74  Ala. 
96,  J)7  ;  49  Am.  Rep.  804,  80G  ;  Buss  v.  Putney,  38  N.  H.  74. 

8  Vi^kery  r.  Welch,  19  Pick.  523,  525.    And  see  Peabody  v.  Nor- 
folk, 1)8  Mass.  452,  457,  460. 

9  See  2  Blackst.  Com.  405 ;  Drone  Copyright,  301,  342. 

10  Warren  ?'.  Warren  Thread  Co.  134  Ma^s.  247,  248;  Burton  v. 
Stratton,  12  Fed.  Rep.  096,  n.  704.    And  see  Pepper  t>.  Labrot,  8  Fed. 
Rep.  2i) ;  12  The  Reporter,  321. 

11  MoFarland  v.  Stewart,  2  Watts,  lit  ;  26  Am.  Dec.  109, 110.    And 
see  Holden  v.  McMakin,  1  Pars.  Hel.  Cas.  280,301.    Compare  Porter 
r.  Gorman,  65  Ga.  11, 14.    Newspaper  establishment  held  subject  of 
property,  to  be  protected  by  law :  Snowden  v.  Noah,  1  Hopk.  Cli. 
347  ;  14  Am.  Dec.  547,  548. 

\  68,  Existence. —  Thing  no  longer  in  existence,  etc. 
A  contract  of  sale  contemplates  an  existing  thing  as  the 
subject  of  transfer.1  And  there  can  be  no  sale  if  the 
thing  intended  to  be  sold  turn  out  not  to  have  been  in 
existence  at  the  time  the  contract  was  made  ; 2  as  Avhere 
it  had  previously  perished  or  been  destroyed  without 
the  knowledge  of  the  parties.3  So  there  can  be  no 
sale  if  the  thing  sold  had  been  transferred  to  a  third 
party.4 

Thing  not  yet  in  existence.  A  hope  or  expectation  of 
means,  founded  on  a  right  in  being,  may  be  the  subject 
of  a  sale,  because  in  such  cases  there  is  a  potential  ex- 
istence ; 5  and  this  principle  applies  to  the  product  or 
increase  of  that  which  is  in  existence.6  Thus,  a  man 


93  THING  SOLD.  g   68 

may  sell  the  wool  to  grow  upon  his  own  sheep,7  or  the 
crops  to  grow  upon  his  own  land,8  or  the  milk  that  a 
cow  may  yield  during  the  coming  year,9  or  the  unborn 
progeny  of  an  animal.10  So  he  may  assign  his  future 
earnings  arising  out  of  a  contract  of  service.11  And  in 
general,  he  may  make  a  transfer  of  anything  which 
amounts  to  a  possibility  coupled  with  an  interest,  as 
his  right  therein  is  vested,  though  contingent  and  liable 
to  be  defeated.12 

Mere  possibility.  But  a  mere  possibility  or  contin- 
gency, not  founded  upon  a  right  or  coupled  with  an 
interest,  cannot  be  the  subject  of  a  sale,13  or  rather,  can- 
not be  the  subject  of  a  present  sale,  though  it  may  be 
of  an  executory  agreement  to  sell.14  And  this  princi- 
ple applies  to  a  transfer  of  accounts  to  be  created,15  or  of 
fish  hereafter  to  be  caught  in  the  sea,16  and  to  an  assign- 
ment of  future  wages  to  be  earned  under  a  contract  not 
existing  at  the  time.17  For  there  can  be  no  immediate 
transfer  of  the  title  to  a  thing  which  has  neither  an  act- 
ual nor  a  potential  existence.18  And  hence  an  expecta- 
tion dependent  on  a  chance  like  a  hope  of  succession 
cannot  be  sold.19 

1  See  Couturier  v.  Hastie,  5  H.  L.  Gas.  673,  681 ;  2  Kent  Com.  463  ; 
1  Parsons  on  Contracts,  522. 

2  See  Hastie  v.  Couturier,  9  Ex.  102  ;  S.  C.  as  Couturier  v.  Hastie, 
5  H.  L.  Cas.  673  ;   Allen  v.  Hammond,  11  Peters,  63,  70  ;  Gibson  v. 
Pelkie,  37  Mich.  380,  381. 

3  2  Kent  Com.  468, 469.    And  see  Franklin  v.  Long,  7  Gill  A  J.  407, 
420;  Thompson  v.  Gould,  20  Pick.  134,  13!) ;  Gardner  v.  Lane,  9  Allen, 
4!)2.  4<)<)  ;  Howell  v.  Coupland,  Law  R.  9  Q.  B.  462,  465 ;  Dexter  v.  Nor- 
ton, 47  N.  Y.  62  ;  Kelly  v.  Bliss,  54  Wis.  187. 

4  Couturier  v.  Hastie,  5  H.  L.  Cas.  673. 

5  Wheelers.  Wheeler,  2  Met.  (Ky.)  474.    And  see  2  Kent  Com.  468. 

6  Van  Hoozer  v.  Cory,  34  Barb.  9,  12. 

7  See  Low  v.  Pew,  108  Mass.  347,  350  ;  11  Am.  Rep.  357,  359  ;  Jones 
v.  Richardson,  10  Met.  481,  488. 

8  Andrew  v.  Newcomb,  32  N.  Y.  417,  421.    And  see  Bellows  ?>. 
Wells,  36  Vt.  599  ;  Sanborn  v.  Benedict,  78  111.  309  ;  Lewis  v,  Lyman, 
22  Pick.  437,  442,  443. 

9  Van  Hoozer  v,  Cory,  34  Barb.  9, 13. 


§   69  THING  SOLD.  94 

10  Hull  v.  Hull,  48  Conn.  250, 256  ;  40  Am.  Rep.  165, 166 ;  Fonville  v. 
Casey,  1  Murph.  389 ;  M'Carty  v.  Blevins,  5  Yerg.  l»5.    See  1  Parsons 
on  Contracts,  523,  n. ;  Allen  v.  Delano,  55  Me.  113, 114  ;  Sawyer  v.  Ger- 
rish,  70  Me.  254,  255 ;  35  Am.  Hep.  323,  324. 

11  Hartley  v.  Tapley,  2  Gray,  565.    See  Low  v.  Pew,  108  Mass.  347, 
350  ;  11  Am.  Rep.  357, 359  ;  distinguishing Mulhall  v.  Quinn,  1  Gray,  1U5. 

12  See  Low  v.  Pew,  108  Mass.  347,  350 ;  11  Am.  Rep.  357,359;  Van 
Hoozer  v.  Cory,  34  Barb.  9, 12  ;  Heald  v.  Builders'  Ins.  Co.  Ill  Mass.  38, 
40. 

13  Wheeler  v.  Wheeler,  2  Met.  (Ky.)  474.    And  see  Low  ?».  Pew.  108 
Mass.  347,850;  11  Am.  Rep.  357.  35:);  Skipper  v.  Stokes,  42  Ala.  255, 
258  ;  Thrall  v.  Hill,  HO  Mass.  328,  3:30. 

14  See  Purcell  v.  Mather,  35  Ala.  570,  573  ;  2  Kent  Com.  468.    Execu- 
tory agreement :  See  §  9. 

15  Skipper  v.  Stokes,  42  Ala.  255,  258.    And  see  Purcell  r.  Mather, 
35  Ala.  570. 

18  Low  v.  Pew,  107  Mass.  347;  11  Am.  Rep.   367;  distinguishing 
Gardner  v.  Hoeg,  18  Pick.  1G8,  and  Tripp  v.  Bunnell,  12  Cush.  376. 

17  Herbert  v.  Bronson,  125  Mass.  475,  473.  And  see  Mulhall  r. 
Qnin n,  1  Gray,  105  ;  Hartley  v.  Tapley,  2  Gray,  565  ;  Twiss  v.  Cheever, 
2  Allen,  40. 

13  See  Rice  v.  Stone,  1  Allen,  566,  561 ;  2  Kent  Com.  468  ;  Hutchin- 
son  r.  Ford.  9  Bush,  318  ;  15  Am.  Rep.  711,  712  ;  Hamilton  r.  Rogers,  6 
MJ.  301, 315.'  And  compare  Clemens  »•.  Duvis,  7  Pa.  St.  2!VJ,  264  ;  Payne 
r.  Lassiter,  10  Yerg.  507,  512;  Cooper  v.  Bumpass,  I  Tex.  Ct.  A  pp. 
(Civ.  Cos.)  g  499. 

19  2  Kent  Com.  468.    And  see  Hitchcock  v.  Giddings,  4  Price.  135, 
140;  Low  ?'.  Pew,  108  Mass.  347,  350  ;  11  Am.  Rep.  3.57,  35»  ;  Wheeler 
r.  Wheeler,  2  Met.  (Ky.)  474.    Compare  Hanks  r.  Pulling,  6  El.  &  B. 
65'),  66').     Otherwise  in  equity  ;  Stover  v.  Eycleshimer,  4  Abb.  X.  Y. 
App.  309,  312  ;  Powers'  Appeal,  63  Pa.  St.  443,  444,  445.    And  see  Mas- 
ti  i  r.  Marlow,  65  X.  C.  olio,  703.    Evidence  as  to  alleged  chance  of 
gjtting  machinery :  Stafford  v.  Henry,  51  Pa.  St.  514,  517. 

g  69.  After  acquired  property.  —  A grecment  to  sell 
property  not  then  owned.  There  may  be  an  agreement 
to  sell  all  and  every  species  of  personal  property  not 
prohibited  by  law,  whether  the  vendor  owns  it  at  the 
time  or  not.1  And  although  the  subject-matter  of  the 
agreement  has  neither  an  actual  nor  potential  existence,2 
such  an  agreement  is  usually  denominated  an  executory 
contract,*  and  for  its  violation  the  remedy  of  the  party 
is  by  an  action  to  recover  damages.4 

Sale  of  vested  interest.  Furthermore,  where  a  party 
has  a  vested  interest  in  chattels,  which  will  ripen  into 
a  perfect  title  by  lapse  of  time,  a  valid  sale  of  his  in- 
terest may  be  made  by  such  party.5 


95  THING  SOLD.  g   69 

Vesting  of  title  subsequently  acquired.  And  some  of 
the  cases  declare  that  if  one  sells  goods  in  which  he  has 
no  property  at  the  time  of  sale,  and  subsequently  acquire 
a  title,  the  property  in  the  goods  will  vest  in  the  buyer 
as  soon  as  a  title  is  acquired  by  the  seller.6 

Confirmatory  act.  But  other  cases  dealing  with  these 
and  like  transfers,  lay  down  the  law  as  well  settled,  that 
a  grant  of  goods  which  at  the  time  thereof  do  not  belong 
to  the  grantor  is  void;7  though  after  the  grantee  has 
acquired  a  title  to  the  goods,  the  grant  may  be  made 
effectual  to  pass  the  property  by  a  new  act,8  done  by 
the  grantor  for  the  avowed  object  and  with  the  view  of 
carrying  the  former  disposition  into  effect.9 

Present  transfer  of  future  acquisitions.  In  general, 
however,  and  under  the  common-law  doctrine,  the  sale 
or  other  transfer  of  chattels  or  other  property  to  be 
thereafter  acquired,  is  deemed  invalid  as  a  conveyance 
of  present  operation.10 

Rule  in  equity.  But  the  rule  in  equity11  is  that  if  a 
party  agrees  to  transfer  either  absolutely  or  by  way  of 
security,  personal  or  real  property  of  which  he  is  not 
possessed  at  the  time,  and  receives  the  consideration  for 
the  contract,  and  afterwards  becomes  possessed  of  prop- 
erty answering  the  description  in  the  contract,  the  court 
will  compel  him  to  perform  the  contract ; 12  and  the 
beneficial  interest  would  pass  to  the  purchaser  or  mort- 
gagee immediately  on  the  property  being  acquired,13 
provided  the  property  is  so  definitely  described  that 
it  can  be  identified.14 

1  Hutehinson  v.  Ford,  9  Bush,  318  ;  15  Am.  Rep.  711,  713.    And  see 
Hibblewhlte  v.  M'Morine,  5  Mees.  <fe  W.  462  ;  Mortimer  v.  M'Callan, 
6  Mees.  &  W.  58,  70 ;  7  Mees.  &  W.  20,  47. 

2  Compare  Calkins  v.  Lockwood,  16  Conn.  276,  285. 

3  See  §  9,  on  EXECUTORY  AGREEMENT. 

4  Hutehinson  v.  Ford,  9  Bush,  318 ;  15  Am.  Rep.  711,  713. 

5  Thrall  v.  Hill,  110  Mass.  328,  330. 


§   69  THING  SOLD.  96 

6  Frazer  v.  Hilliard,  2  Strob.  309,  317.    And  see  Blackmore  v. 
Shelby,  8  Humph.  439,  441.    Compare  Hotchkiss  v.  Oliver.  5  Deuio, 
314,  319. 

7  Head  v.  Goodwin,  37  Me.  181, 187.    The  common  law  recognizes 
transfers  of  chattels  when  they  are  the  produce  of  land  or  of  chattels 
already  owned  by  the  transferrer,  but  not  of  future  chattels  sim- 
pliciter:  Brett  v.  Carter,  2  Low.  -158,  461. 

8  Head  v.  Goodwin,  37  Me.  181,  187.    There  must  be  nonis  actns 
interveniens  after  the  chattels  are  acquired  ;  that  is  to  say,  either  some 
new  transfer,  or  possession  taken  under  the  old :  Brett  v.  Carter,  2 
Low.  458,  461. 

9  Lunn  v,  Thornton,  1  Com.  B.  379, 387.    And  see  Jones  v.  Richard- 
son, 10  Met.  481 ;  Moody  v.  Wright,  13  Met.  17,  30,  31 ;  Abraham  v. 
Carter,  53  Ala.  8, 10. 

10  See  Gale  v.  Burnell,  7  Q.  B.  850, 863  ;  Lunn  v.  Thornton,  1  Com.  B. 
379,  387  ;  Head  v.  Goodwin,  37  Me.  181, 187;  Brett  v.  Carter,  2  Low.  458, 
467  ;  Pierce  v.  Emery,  32  N.  H.  484,  505  ;  Moody  v.  Wright,  13  Met.  17, 
2.) ;  Rice  v.  Stone,  1  Allen,  566,  569  ;  Noyes  v.  Jenkins,  5-5  Ga.  586.    But 
compare  Chidell  r.  Galsworthy,  6  Com.  B.  N.  S.  471,478.    Mortgage 
of  future  acquisition  sustained  :   Pierce  v.  Emery,  32  N.  H.  484  ;  Hen- 
shaw  v.  Bank,  10  Gray,  568  ;  Barnard  v.  Eaton,  2  Cush.  2;)4,  303  ;  Cressy 
v.  Sabre,  17  Hun,  120, 122  ;  Pennock  v.  Coe,  23  How.  117,  128  ;  Watkins 
r.  Wyatt,  9  Ba-t.  250  ;  30  Am.  Rep.  63  ;  Parker  v.  Jacobs,  14  S.  C.  112  ; 
37  Am.  Rep.  724;  Dupree  v.  McClanahan,  1  Tex.  Ct.  App.  (Civ.  Cas.) 
H  51)4,  505.    And  see  Brett  v.  Carter,  2  Low.  458,  462,  463  ;  Codnrnn 
v.  Freeman,  3  Cush.  306,  309  ;  Sawyer  v.  Gerrish,  70  Me.  254;  35  Am. 
Rep.  323.    Such  mortgage  not  sustained:  Phelps  v.  Murray,  2  Tenn. 
Ch.  746;  Griffith  v.  Douglass,  73  Me.  432;  40  Am.   Rep.  395.    Com- 
pare Winslow  v.  Merch.   Ins.   Co.  4  Met.  306.    Subject  discussed : 
6  South.  L.  Rev.  N.  S.  221.    Regulation  by  statute  as  to  liens  in  crops  : 
See  Jarrett  ?>,  McDaniel,  32  Ark.  598  ;  Abraham  v.  Carter,  53  Ala.  8, 10 ; 
Stephens  v.  Tucker,  55  Ga.  543,  544. 

11  See  generally,  Abraham  v.  Carter,  53  Ala.  8, 10. 

12  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191,  211.    Assuming  that  the 
contract  is  one  of  that  class  of  which  the  court  woull  decree  the 
specific  performance :  Holroyd  v,  Marshall,  10  H.  L.  Cas  191,  211. 

13  Holroyd  v.  Marshall,  10  H.  L.  Cas.  191,  211.    And  see  generally 
Apperson  v.  Moore,  30  Ark.  56  ;  21  Am.  Rep.  170. 

14  See  Belding  r.  Read,  3  Hurl.  &  C.  955 ;  Brett  v.  Carter,  2  Low.  453, 
461  ;  Lazarus  r.  Andrade,  Law  R.  5  C.  P.  D.  318.     Compare  Beall  v, 
White,  94  U.  S.  382,  387. 


97  EXECUTORY   SALES.  g   70 


CHAPTER  VII. 

EXECUTORY   SALES. 

8  70.  In  general. 

5  71.  Intention  to  transfer  title. 

I  72.  Difficulty  in  determining  intention. 

?  73.  Passing  of  title  and  risk. 

\  74.  Something  to  be  done. 

I  70.  In  general.  —  Present  transfer  of  title  in  bargain 
and  sale.  —  At  common  law,  the  mutual  assent  of  the 
parties  binds  the^contract,  which  is  deemed  a  bargain 
and  sale,  if  the  property  by  the  terms  of  the  agreement 
passes  immediately  to  the  buyer  ; !  and  in  such  a  transac- 
tion the  transfer  of  title  is  effected  the  moment  the  con- 
tract is  concluded,  regardless  of  delivery  or  retention  of 
possession.2 

Executory  agreement,  where  postponement  of  trans- 
fer of  title.  But  the  contract  is  regarded  as  an  execu- 
tory agreement  if  the  property  in  the  thing  sold 
temporarily  remains  in  the  seller,  and  is  only  to  pass 
to  the  buyer  at  a  future  time,  or  on  certain  conditions 
inconsistent  with  its  immediate  transfer;3  and  such 
buyer  cannot  hold  the  goods,  although  he  has  advanced 
money  upon  them,4  against  a  subsequent  purchaser 
from  the  same  vendor,  who  has  obtained  a  complete 
title  through  an  executed  or  absolute  sale.5 

Contract  with  right  of  inspection,  etc.  A  contract  which 
confers  on  the  party  proposing  to  buy  cotton  a  right  to 
inspect,  examine,  and  reweigh  the  cotton  within  a 
specified  time,  and  on  paying  or  tendering  the  price 
within  a  specified  time,  to  demand  a  transfer  of  the 
ownership  and  possession,  and  also  confers  on  the  seller 
a  corresponding  right  to  demand  such  inspection,  etc., 
K  SALF.S.—  9. 


§  70  EXECUTORY  SALES.  98 

within  the  prescribed  time,  is  not  a  sale,  but  an  execu- 
tory agreement  for  a  sale,  and  does  not  pass  the  title  to 
the  cotton.6 

Conveyance  and  contract.  The  transaction  is,  in  the 
technical  language  of  the  English  law,  called  a  bargain 
and  sale,  and  the  contract  is  said  to  be  executed  when  the 
transfer  of  property  is  completed  uno  ictu  with  the  con- 
tract itself.7  But  the  sale  or  contract  is  said  to  be  execu- 
tory when  the  transfer  is  not  so  completed,  and  it  is  meant 
that  there  has  been  no  conveyance  but  only  a  contract.8 

Distinctions  in  scope  and  remedies.  In  the  latter  case 
there  is  not  strictly  a  sale,  but  rather  a  mere  promise  to 
sell,  or  agreement  for  a  future  sale,9  and  the  party  con- 
tracting to  buy  does  not,  as  in  the  case  of  a  present  sale, 
become  the  owner  of  the  goods  and  liable  for  their  loss 
or  destruction ; 10  nor  can  he  claim  the  identical  goods  or 
sue  for  their  conversion,  but  his  remedy  at  common  law 
for  a  breach  of  the  contract  is  limited  to  an  action  for 
damages.11  In  the  former  case  the  seller  parts  with  his 
title,  but  may  retain  the  possession,  and  even  the  right 
of  possession,12  so  as  to  enforce  his  lien  on  the  goods,13 
and  stop  them  while  in  transit  to  the  buyer.14 

Two  senses  of  executed  sale.  An  executed  or  absolute 
sale  should  be  further  distinguished  from  an  executed 
contract  of  sale,15  as  the  former  relates  to  the  formation 
of  the  contract,  and  means  a  sale,  where  nothing  remains 
to  be  done  by  either  party  to  effect  the  transfer  of  title, 
while  the  latter  relates  to  the  fulfillment  of  the  contract, 
and  signifies  that  it  has  been  fully  performed  on  both 
sides  by  the  delivery  of  the  thing  sold,  and  the  payment 
of  the  price  therefor.16 

1  Hatch  v.  Oil  Co.  100  U.  S.  124, 131. 

2  See  Meyerstein  v.  Barber,  Law  R.  2  Com.  P.  38,  51 ;  Law  R.  4 


H.  L.  .317,  326 ;  Webber  v.  Davis,  44  Me.  147  ;  Bailey  r.  Smith,  43  N. 
143 ;  Dexter  rv  Norton,  55  Barb.  272  ;  Crill  v.  Doyle,  53  Cal.  713 ;  Tome 


99  EXECUTORY  SALES.  §   71 

3  Hatch  v.  Oil  Co.  100  U.  S.  124, 131.    And  see  The  Elgee  Cotton 
Cases,  22  Wall.  180, 187 ;  Leigh  v.  Mobile  etc.  R.  B.  Co.  58  Ala.  165, 174  ; 
Strauss  v.  Ross,  25  Ind.  300  ;  Lester  v.  East,  49  Ind.  538,  592  ;  Olriey  v. 
Howe,  89  111.  556 ;  Cardinell  v.  Bennett,  52  Cal.  476. 

4  Dittmar  v.  Norman,  118  Mass.  319 ;  Powder  Co.  v.  Burkhardt,  97 
TJ.  S.  110. 

5  Elliott  v.  Stocldard,  08  Mass  145.    Basis  of  foregoing  statements 
and  authorities :  Bennett's  Benjamin  on  Sales,  §  308,  and  notes  ;  1 
Corbia's  Benjamin  on  Sales,  §  308,  and  notes  ;  Lester  v.  East,  4s)  Ind. 
533,  592 ;  Hatch  v.  Oil  Co.  100  U.  S.  124, 131 ;  Elgee  Cotton  Cases.  22 
Wall.  ISO,  187  ;  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 174.    Compare 
Blackburn  on  Sales,  147,  149  ;  Story  on  Sales,  $g  231,  232  ;  Heilbutt  v. 
Hick  son,  Law  R.  7  Com.  P.  438 ;  3  Eng.  Rep.  328  ;  2  Schouler  on  Per- 
sonal Property,  \  237.    See  \  9,  on  SALE  OR  EXECUTORY  AGREEMENT. 

6  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 174.    And  a  written 
order  by  the  seller  to  the  purchaser,  directing  delivery  to  a  railroad 
company  of  the  cotton  by  a  warehouseman  with  whom  it  was  stored, 
did  not  convert  the  executory  bargain  into  a  sale  :  Leigh  v.  Mobile 
etc.  R.  R.  Co.  58  Ala.  165, 174, 175. 

7  See  citations  in  next  note. 

8  Campbell  on  Sales,  2.    And  see  Graham's  Blackburn  on  Sales, 
243. 

9  See  §  9,  on  SALE  OR  EXECUTORY  AGREEMENT  ;  Cunningham 
v.  Ashbrook,  20  Mo.  553,  556  ;  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 
174  ;  2  Bouvier  Law  Diet.  (15th  ed.)  607. 

10  See  section  on  PASSING  OF  TITLE  AND  RISK. 

11  See  2  Schouler  on  Personal  Property,  §  238 ;  Benjamin  on  Sales, 
(Am.  eels.)  §308;  Graham's  Blackburn  on  Sales,  Introd.  ix. ;  Leigh 
v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 175  ;  Lester  v.  East,  4J  Ind.  588,  592, 

12  See  section  on  RIGHT  OF  POSSESSION,  under  ehapter  on  TRANS- 
FER OF  TITLE. 

13  See  chapter  on  SELLER'S  LIEN. 

14  See  chapter  on  STOPPAGE  IN  TRANSITU. 

15  2  Schouler  on  Personal  Property,  £  237. 

16  See  Story  on  Sales,  §  231 ;  citing,  Fletcher  v.  Peek,  6  Cranch,  136. 
Compare  Smith  v.  Supervisors,  44  Wis.  65)1. 

§  71.  Intention  to  transfer  title.  —  Passing  or  retention 
of  title.  In  a  bargain  and  sale,  as  before  stated,1  the 
thing  sold  becomes  the  property  of  the  buyer  the 
moment  the  contract  is  concluded,2  regardless  of  deliv- 
ery or  retention  of  possession,3  while  in  an  executory 
agreement  the  goods  remain  the  property  of  the  vendor 
till  the  contract  is  executed.4 

Intention  governs.  Whether  a  contract  is  of  the  one 
kind  or  the  other,  and  whether  the  title  to  the  property 
passes  or  not,  depends  upon  the  intention 5  of  the  par- 


§   71  EXECUTORY  SALES.  100 

ties  to  the  agreement,6  and  this  design  may  be  so  clearly 
shown,  as  by  expressly  reserving  the  title,  that  no 
question  can  arise  concerning  it ; 7  while  the  mere  fact 
that  something  remains  to  be  done  to  the  property  will 
not  control  as  against  the  unequivocal  acts  of  the 
parties.8 

Manifestation  and  ascertainment.  Such  intention 
must  be  manifested  at  the  time  the  bargain  is  made, 
and  can  be  ascertained  only  from  the  terms  of  the 
agreement  as  expressed  in  the  language  and  conduct 
of  the  parties,  and  as  applied  to  known  usage  and  the 
subject-matter  of  the  contract.9 

Province  of  court  and  jury.  This  intent  must  be 
determined  by  the  jury,10  unless  the  evidence  will 
legally  justify  no  other  finding;11  but  when  the  facts 
arc  ascertained,  either  by  the  written  agreement  of  the 
parties  or  by  the  findings  of  a  court,  questions  of  law 
are  alone  presented.12 

Further  act  to  be  done  to  goods.  An  intention  that  the 
title  shall  not  vest  in  the  purchaser  is  generally  shown 
in  the  case  of  specific  and  ascertained  existing  chattels, 
by  the  fact  of  some  further  act  being  first  required  to 
be  done,  such  as  delivery  or  payment  of  the  price,  or 
weighing  or  measuring  in  order  to  ascertain  the  price, 
or  marking,  packing,  finishing,  etc.13  In  the  case  of 
goods  not  ascertained  or  existing  at  the  time  of  the  con- 
tract, like  tests  apply  as  to  those  goods  which  have 
been  afterwards  selected  and  appropriated  by  the  seller, 
and  approved  and  assented  to  by  the  buyer.14 

Goods  ready  for  delivery,  etc.  But  in  the  case  of  sales, 
where  the  property  to  be  sold  is  in  a  state  ready  for  de- 
livery, and  the  payment  of  money,  or  giving  security 
therefor,  is  not  a  condition  precedent  to  the  transfer,  it 
may  well  be  the  understanding  of  the  parties  that  the 
sale  is  perfected,  and  the  interest  passes  immediately  to 


101  EXECUTORY  SALES.  §  71 

the  vendee,  although  the  weight  or  measure  of  the  arti- 
cles sold  remains  yet  to  be  ascertained.15  And  such  a 
case  presents  a  question  of  the  intention  of  the  parties 
to  the  contract.16 

Meeting  of  minds.  In  general,  the  owner  must  intend 
to  part  with  his  property,  and  the  purchaser  to  become 
the  immediate  owner.17  Their  two  minds  must  meet 
on  this  point,  and  if  anything  remains  to  be  done  before 
either  assents,  it  may  be  an  inchoate  contract,  but  it  is 
not  a  perfect  sale.18 

1  See  preceding  section. 

2  Lester  v.  East,  40  Ind.  588,  592. 

3  See  Meyerstein  v.  Barber,  Law  R.  2  Com.  P.  38  ;  Law  R.  4  H.  L. 
317  ;  Tome  v.  Dubois,6  Wall.  548  ;  Webber  v.  Davis,  44  Mo.  147  ;  Bailey 
v.  Smith,  43  N.  II.  143  ;  Dexter  v.  Norton,  55  Barb.  272 ;  Crill  v.  Doyle, 
53  Gal.  713. 

4  The  Elgee  Cotton  Cases,  22  Wall.  180,  187 ;  Leigh  v.  Mobile  & 
Ohio  R.  B.  Co.  53  Ala.  165, 174  ;  Olney  v.  Howe,  8!)  111.  55(5 ;  Strauss  v. 
Ross,  25  Ind.  300  ;  Lester  v.  East.  49  Ind.  588,  592  ;  Cardinell  v.  Ben- 
nett, 52  Cal.  476. 

5  See  State  v.  Four  Jugs  etc.  2  Atl.  Rep.  (Vt.)  586,  581). 

6  Me.  —  Stone  v.  Peacock,  35  Me.  383  ;  Bethel  Steam  Mill  Co.  v. 
Brown,  57  Me.  18  ;  Dyer  v.  Libby,  61  Me.  43.    Vt.  —  Bellows  v.  Wells,  36 
Vt.  599  ;  Fitch  v.  Burk,  38  Vt.  689.    JV.  JL  —  Fuller  v.  Bean,  34  N.  II. 
290  ;  Ockinton  v.  Bickey,  41  N.  H.  279  ;  Kelsea  v.  Haines,  41  N.  H. 
246  ;  Prescott  v.  Locke,  51  N.  H.  101.    Mass.  —  Sumner  v.  Hamlet,  12 
Pick.  76;  Macomber  v.  Parker,  13  Pick.  1»2  ;  Riddle  v.  Varnum,  20 
Pick.  283  ;  Jenny  v.  Williams,  5  Allen,  3  ;  Morse  v.  Sherman,  106 
Mass.  433 ;    Dugan  v.  Nichols,  125   Mass.  33.     Conn.  —  Chapman   v. 
Shepard,  39  Conn.  413.    _ZV.  Y.  —  Terry  v.  Wheeler,  25  N.  Y.  520  ;  Lang- 
dell's  Cases  on  Sales,  706  ;  Russell  v.  Carrington,  42  N.  Y.  118  ;  1  Am. 
Rep.  418;  Kurd  v.  Cook,  75  N.  Y.  454.    Mo.  —  Cunningham  v.  Ash- 
brook,  20  Mo.  553.    Mich.  —  Wilkinson  v.  Holiday,  33  Mich.  386.    Ind.  — 
Lester  v.  East,  49  Ind.  588.    Fed.  Ct.  —  Barrett  v.  Goddard,  3  Mason, 
113;  Elgee  Cotton  Cases,  22  Wall.  180;  Hatch  v.  Oil  Co.  100  IT.  S.  124. 
Eng.  —  Turley  v.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales, 
6)2  ;  Logan  v.  Le  Mesurier,  11  Moore  P.  C.  C.  116  ;  Langdell's  Cases  on 
Sales,  681;  Ogg  v.  Shuter,  Law  R.  10  Com.  P.  159.    Can.  —  Gleason  v. 
Knapp,26Up.  Can.  C.P.  553;  Rossv.  Ety,28ITp.  Can.  C.  P.  316.   N.B.— 
Gibson  v.  McKean,  3  Pugs.  299  ;  Sprague  v.  King,  1  Pugs.  <fe  B.  24. 

7  Weed  v.  Boston  etc.  Ice  Co.  12  Allen,  377. 

8  Sewell  v.  Eaton,  6  Wis.  490  ;  Fletcher  v.  Ingram,  46  Wis.  190. 

9  Foster  v.  Ropes,  111  Mass.  10, 16.    And  see  Hatch  v.  Oil  Co.  100 
U.  S.  124, 131 ;  Callaghan  v.  Myers,  89  111.  556  ;  Lingham  v.  Eggleston, 
27  Mich.  324,  326. 

10  Biddle  v.  Varnum,  20  Pick.  283;  Merchants'  Nat.  Bank  v. 
Bangs,  102  Mass.  291  ;  Marble  v.  Moore,  102  Mass.  443 ;  George  v. 
Stubbs,  26  Me.  250  ;  Dyer  v.  Libby,  61  Me.  45 ;  Fuller  v.  Bean.  34  N.  H. 
290 ;  Kelsea  v.  Haines,  41  N.  H.  253 ;  De  Kidder  v.  McKnight,  13 
Johns.  294  ;  McClurg  v.  Kelley,  21  Iowa,  508. 


§   72  EXECUTORY  SALES.  102 

11  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291. 

12  Terry  v.  Wheeler,  25  N.  Y.  520  ;  Langdell's  Cases  on  Sales,  706. 
Basis  of  foregoing  statements  and  authorities:  Bennett's  Benjamin 
on  Sales,  \  311  a,  notes ;  1  Corbin's  Benjamin  on  Sales,  ?  309,  notes  2, 
3 ;  State  v.  Four  Jugs  etc.  2  Atl.  Rep.  (Vt.)  586,  589  ;  Foster  v.  Ropes, 
111  Mass.  10, 16  ;  Lingharn  v.  Eggleston,  27  Mich.  324,  326. 

13  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438, 449  ;  3  Eng.  Rep.  328, 
337. 

14  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438,  449 ;  3  Eng.  Rep. 
328,  337. 

15  Riddle  v.  Varnum,  20  Pick.  280,  283,  284.    And  see  Denny  v.  Wil- 
liams, 5  Allen,  3,4. 

Ifi  RMrlle  r.  Varnum.  20  Pick.  280,  284.  The  party  affirming  the 
sale  must  satisfy  the  jury  that  it  was  intended  to  be  an  absolute 
tiunsfor,  ami  that  all  that  remained  to  be  done  was  merely  for  the 
purpose  of  ascertaining  the  price  of  the  articles  sold  at  the  rate 
agreed  upon :  Riddle  v.  Varnum,  20  Pick.  280,  284. 

17  Mason   v.  Thompson,  18   Pick.  305.    It   is  to   be  ascertained 
whether  the  negotiations  and  acts  of  the  parties  are  evincive  of  an 
titentlon  on  the  part  of  the  seller  to  relinquish  all  further  claim  or 
control  as  owner,  and  on  the  part  of  the  buyer  to  assume  such  con- 
trol with  its  consequent  liabilities  :  Bethel  Steam  Mill  Co.  v.  Brown, 
57  Me.  18. 

18  Mason  v.  Thompson,  18  Pick.  305.    See  State  v.  Four  Jugs  etc. 
2  Atl.  Rep.  (Vt.)586,  589.    The  general  rule,  where  the  case  is  net 
within  the  statute  of  frauds,  is  that  the  question  is  orJ.y  one  of 
mutual  assent,  whether  the  minds  of  the  parties  have  met  and  by 
thoir  understanding  the  purchaser  has  now  become  the  owner  : 
Wilkinson  v.  Holiday,  33  Mich.  386,  388. 

§  72.  Difficulty  in  determining  intention.  —  In  general. 
It  is  the  general  rule  that  the  property  in  goods  and 
chattels  passes  under  the  contract  of  salo  according  to 
the  intention  of  the  parties;1  but  the  difficulty  in  the 
application  of  this  rule  is  in  determining  under  what 
circumstances  the  parties  shall  be  considered  as  having 
evinced  an  intention  that  property  in  the  subject-matter 
of  sale  should  pass  from  the  vendor  to  the  purchaser.2 

Slight  circumstances  sometimes  deemed  important.  Of 
the  numerous  cases  on  the  subject  which  are  said  not  to 
be  harmonious,  those  which  have  been  decided  on  the 
peculiar  language  of  the  statute  of  frauds 3  are  stated  to 
have  held  a  very  stringent  rule  ;4  and  where  the  rights 
cf  unpaid  vendors  are  concerned,  courts  have  laid  hold 
of  slight  circumstances  to  retain  the  property  in  such 
vendors  until  the  purchase  money  be  paid.5 


103  EXECUTORY  SALES.  §   73 

1  See  section  on  INTENTION"  TO  TRANSFER  TITLE. 

2  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  2S2,  283,  284.    And 
see  Zlgee  Cotton  Cases,  22  Wall.  180, 187. 

3  Statute  of  frauds :  See  subsequent  chapter  on  that  subject. 

4  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Kep.  282,  284. 

5  See  case  just  cited  relying  upon  following  decisions :  Hanson  v. 
Meyer,  6  East,  614  ;  Langdell's  Cases  on  Sales,  (>-'i9  ;  Wallace  v.  Breeds, 
13  East,  522  ;  Langdell's  Cases  on  Sales,  73!) ;  Shepley  v.  Davis,  2  Maule 
<fe  S.  397 ;  Langdell's  Cases  on  Sales,  752 ;  Bush  v.  Davis,  2  Maule  <fe 
S.  397  ;  Langdell's  Cases  on  Sales,  747;  Swan  wick  v.  Sothern,  9  Ad.  & 
E.  895  ;  Langdell's  Cases  on  Sales,  673  ;  Goots  v.  Hose,  17  Com.  B.  22'j  ; 
Langdell's  Cases  on  Sales,  970. 

\  73.  Passing  of  title  and  risk.  —  Sale  of  specific  ascer- 
tained goods  as  passing  title.  By  a  contract  for  the  sale 
of  specific  ascertained  goods,1  the  property,  by  the  Eng- 
lish law,  immediately  vests  in  the  buyer,  and  a  right  to 
the  price  in  the  seller,  unless  it  can  be  shown  that  such 
was  not  the  intention  of  the  parties.2  So  in  this  country 
the  same  well-settled  rule  governs  in  regard  to  the 
passing  of  the  title,  where  nothing  remains  to  be  done 
on  the  part  of  the  seller  in  the  way  of  ascertaining, 
appropriating,  or  delivering  the  property  sold.3 

Change  of  risk.  And  since  the  risk  of  property  which 
is  the  subject  of  a  sale  usually  attends  the  title,4  the 
effect  of  the  transaction  is  to  cast  upon  the  purchaser 
all  future  risk,  although  he  cannot  take  the  goods  away 
without  paying  the  price.5 

Goods  identified  but  not  separated,  etc.  Furthermore, 
the  general  doctrine  applies  if  the  goods  are  identified, 
though  not  separated  from  others,6  and  the  property 
may  pass,  although  the  vendor  agrees  to  do  something 
further  in  regard  to  the  goods.7 

1  See  Hatch  v.  Oil  Co.  100  U.  S.  124, 134. 

2  Gllmour  v.  Supple,  11  Moore  P.  C.  C.  560;  Langdell's  Cases  on 
Sales,  6-4.    And  see  Simmons  v.  Swift,  5  Barn.  &  C.  360;  Langdell's 


Baxter,  6  Barn.  <fe  C,  360 ;  Langdell's  Cases  on  Sales,  621 ;  Chenery  v. 
Vial,  5  Hurl.  <fe  N.  288  ;  Sweeting  v.  Turner,  Law  II.  7  Q.  B.  310  ;  Dixon 
v.  Yates,  5  Barn.  &  Adol.  313  ;  The  Calcutta  Co.  v.  De  Mattos,  32  Law 
J.  Q.  B.  322;  Chambers  v.  Miller,  10  Com.  B.  N.  S.  125;  Spartali  v. 
Benecke.10  Com.  B.  N.  S.  212  ;  Joyce  ?«.  Swan,  17  Com.  B.  N.  S.  84  ; 
Wood  v.  Bell,  6  m.  &  B.  305  ;  Langdell's  Cases  on  Sales,  847;  Turley 


g   74  EXECUTORY  SALES.  104 

v.  Bates,  2  Hurl.  &  C.  200;  Langdell's  Cases  on  Sales,  692  ;  Hlnde  v. 
Whitehouse,  7  East,  588  ;  Langdell's  Cases  on  Sales,  102. 

3  Me.  —  Merrill  v.  Parker,  24  Me.  89;  Wing  v.  Clark,  24  Me.  366; 
Waldron  v.  Chase,  27  Me.  414  ;  Means  v.  Williamson,  87  Me.  556  ;  Web- 
ber v.  Davis,  44  Me.  147  ;  Hotchkiss  v.  Hunt,  49  Me.  213 ;  Chase  v.  Wil- 
hird,  57  Me.  157.    N.  H.  —  Page  v.  Carpenter,  10  N.  H.  77  ;  Felton  v. 
Fuller,  29  N.  H.  121  ;  Bailey  v.  Smith,  43  N.  H.  143.    Mass.  —  Kice  v. 
Coclman,  1  Allen,  377  ;  Gardner  v.  Lane,  9  Allen,  498  ;  Thayer  v.  Lap- 
ham,  13  Allen,  28 ;   Warden  v.  Marshall,  99  Mass.  305 ;   Marble  v. 
Moore,  102  Mass.  443 ;  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  295  ; 
Martin  v.  Adams,  104  Mass.  262 ;  Morse  v.  Sherman.  106  Mass.  4CO ; 
Foster  v.  Ropes,  111  Mass.  10 ;  Haskins  v.  Warren,  115  Mass.  533  ;  God- 
el  urd  v.  Bhiney,  115  Mass.  456 ;  Townsend  v.  Ilar^raves,  118  Mass.  325. 
N.  Y.  —  Olyphant  v.  Baker,  5  Denio,  379  ;  Langdell's  Cases  on  Sales, 
655  ;  Terry  v.  Wheeler,  25  N.  Y.  520  ;  Langdell'S  Cases  on  Sales,  703  ; 
Bigler  v.  Hall,  54  N.  Y.  67.    N.  C.  —  Simpson  v.  Simpson,  3  Ired.  233  ; 
Jenkins  v.  Jarrett,  70  N.  C.  255.    S.  C.  —  Frazer  v.  Hilliard,  2  Strob.  300. 
JI'T/.  — Willis  v.  Willis,  6  Dana,  48;  Crawford  v.  Smith,  7  Dana,  59; 
Sweeney  v.  Onsley,  4  Mon.  B.  413 ;  Bufflngton  v.  Ulen,  7.  Bush,  221. 
Ohio—  Hoobr.n  v.  Bidwell,  16  Ohio,  506.    Ind.  —  Lester  v.  East,  4'J  I::d. 
5S8.    Colo.  —  Hanauer  v.  Bartels,  2  Colo.  514.    Fed.  Ct.  —  Barrett  ?>.  God- 
dard,  3  Mason,  107.    And  see  Hatch  v.  Oil  Co.  100  U.  S.  124, 134.     Contra, 
see  Lehman  v.  Warren,  53  Ala.  535. 

4  Taylor  v.  Lapham,  13  Allen,  26;  Joyce  v.  Adams,  4  Seld.  206; 
Terry  v.  Wheeler,  23  X.  Y.  520  ;  Langdell's  Cases  on  Sales,  70,5 ;  Whit- 
comb  v.  Whitney,  24  Mich.  486  ;  Smith  v.  Balls,  35  Ind.  255  ;  Willis  v. 
Willis,  6  Dana,  49. 

5  Simmons  v.  Swift,  5  Barn.  &  C.  862  ;  Langdell's  Cases  on  Sales, 
630.    Ami  see  Willis  v.  Willis,  6  Dana,  48  ;  Arnold  v.  Delano,  4  Cnsh. 
Z">  ;  50  Am.  Dec.  75-1 ;  Hall  v.  Richardson,  16  Mel.  383.    But  see  Currie 
r.  White,  1  Sweeny,  176. 

6  Ropes  v.  Lane,  9  Allen,  502 ;  Arnold  v.  Delano,  4  Gush.  40 ;  50 
Am.  Doc.  754,  758.    And  see  Levasseur  v.  Gary,  3  Atl.  Rep.  (Me.)  4r,l ; 
22  The  Reporter,  304. 

7  Marble  v.  Moore,  102  Mass.  443  (alteration  of  hog);  Terry  v. 
Wheeler,  25  N.  Y.  5JO  ;  Langdell's  Cases  on  Sales,  70S  (delivery  at  rail- 
road station) ;  Thorndike  v.  Bath,  114  Mass.  116  (finishing  piano) ; 
Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  9.    And  see  Filkins  r.  Why- 
land,  24  N.  Y.  341 ;  Russel  v.  Carrlngton,  42  N.  Y.  118  ;  1  Am.  Rep.  418 ; 
Bates  v.  Coster,  3  Thomp.  &  C.  580  ;  Dyer  v.  Libby,  61  Mo.  45  ;  Wul- 
d?n  ?'.  Murdock,  23  Gal.  540  ;  Cummings  v.  Gri~~s,  2  Duval,  87.    Basis 
of  foregoing  statements  and  authorities  :  Bennett's  Benjamin  on 
Bales,  \\  315,  317,  notes  ;  1  C'orbin's  Benjamin  on  Sales,  \\  315,  317, 
rotes ;  Hatch  v.  Oil  Co.  100  U.  S.  124 ;  Arnold  v.  Delano,  4  Cush.  33 ; 
50  Am.  Dec.  754 ;  Levasseur  v.  Gary,  3  Atl.  Rep.  431  ;  22  The  Reporter, 
SCI ;  and  decisions  reported  in  Langdell's  Gases  on  Sales  as  given. 

$  74.  Something  to  ba  done.  —  Presumption  in  favor  cf 
postponing  transfer  of  title.  —  Where  under  a  contract 
for  the  purchase  of  personal  property,  something  re- 
mains to  be  done  to  identify  the  property,  or  to  put  it  in 
a  condition  for  delivery,  or  to  determine  the  sum  that 
shall  be  paid  for  it,  the  presumption  is  always  very 
strong,  though  by  no  means  conclusive,  that  by  the 


105  EXECUTORY  SALES.  §   74 

understanding  of  the  parties  the  title  was  not  to  pass 
until  such  act  had  been  fully  done  and  accomplished.1 

Statement  of  general  doctrine.  And  the  general  doc- 
trine on  this  subject  is  said  undoubtedly  to  be,  that 
when  some  act  remains  to  be  done  in  relation  to  the 
articles  which  are  the  subject  of  the  sale,2  as  that  of 
weighing  or  measuring,3  and  there  is  no  evidence  tend- 
ing to  show  the  intention  of  the  parties  to  make  an  abso- 
lute and  complete  salo,  the  performance  of  such  act  is  a 
prerequisite  to  the  consummation  of  the  contract,4  and 
until  it  is  performed  the  property  does  not  pass  to  the 
vendee.5 

Unperformed  operation.  More  broadly  it  is  laid  down 
as  a  general  principle  that  where  any  operation,  such  as 
weighing,  measuring,  counting,  or  the  like,  remains  to 
be  performed  in  order  to  ascertain  the  price,  the  quantity, 
or  the  particular  commodity  to  be  delivered,  and  to  put 
ifc  in  a  deliverable  state,  the  contract  is  incomplete  until 
such  operation  is  performed;6  and  the  performance 
thereof  is  a  condition  precedent  to  the  passing  of  the 
title  to  the  goods.7 

Limitations  of  general  doctrine.  But  this  doctrine  ap- 
plies only  where  such  is  the  agreement  or  intention  of 
the  parties,8  and  it  has  been  limited  to  cases  where  the 
acts  named  are  necessary  to  identify  the  goods,9  or  fit 
them  for  delivery,10  and  where  such  acts  are  to  be  done 
by  or  for  the  seller,11  although  it  sometimes  has  been 
declared  that  it  is  indifferent  whether  the  acts  remain- 
ing to  be  done  to  render  the  sale  complete  are  to  be  per- 
formed by  the  buyer,  or  by  the  seller,  or  by  a  third 
person,  and  are  designed  to  identify  the  goods  or  to  de- 
termine the  price,  or  to  enable  the  property  to  pass  in 
conformity  to  the  agreement,  as  the  payment  of  duties 
on  imported  goods,  or  their  transportation  to  a  different 
place.12 


§74 


EXECUTORY  SALES. 


106 


1  Wilkinson  v.  Holiday,  33  Mich.  386.    And  see  Hubler  v.  Gaston, 
9  Or.  66 ;  42  Am.  Hep.  794, 795  ;  Hatch  v.  Oil  Co.  100  U.  S.  124,  133. 

2  Material  act  before  delivery :  See  Darden  v.  Lovelace,  52  Ala. 
289,  200. 

3  See  Stevens  v.  Eno,  10  Barb.  95,  C6. 

4  Riddle  v.  Varnum,  20  Pick.  2SO.    The  general  rule  in  relation  to 
the  sale  of  personal  property  is  also  declared  to  be,  that  if  anything 
remains  to  be  done  by  the  seller  before  delivery,  no  property  pass*  s 
to  the  vendee,  even  as  between  the  parties  :  Hale  v.  Huntley,  21  Vt. 
1-17.    And  see  Warren  v.  Buckminster,  24  N.  H.  336,  342  ;  Gibbs  v. 
Benjamin,  45  Vt.  124.    Compare  Stevens  v.  Eno,  10  Barb.  95,  96. 

5  Riddle  v.  Varnum,  20  Pick.  280.    To  effect  a  complete  sale  the 
contract  must  be  executed,  and  nothing  further  to  be  done  to  ascer- 
tain the  quantity,  quality,  or  value  of  the  property :  Gibbs  v.  Benja- 
min,45  Vt.  124.    And  see  Hatchings  v.  Gil  Christ,  23  Vt.  88.    Where 
any  act  remains  to  be  done  before  the  sale  is  complete,  the  title 
romains  in  tlie  seller,  and  he  must  sustain  the  loss  caused  by  injury 
to  the  property :  Bertelson  v.  Bower,  81  Ind.  512,  513. 

6  Macomber  v.  Parker,  13  Pick.  175, 183.    And  see  Barrett  v.  God- 
dard,  3  Mason,  107.    Compare  Dixon  v.  Myers,  7  Gratt.  240,  243. 

7  See  Foster  v.  Ropes,  11  Mass.  10  ;  Gilbert  v.  N.  Y.  Cent.  R.  R.  4 
Hun,  378;  Bailey  v.  Smith,  43  N.  H.  141 ;  McClurg  v.  Kelley,  21  Iowa, 
505;  Strauss  v.  Ross,  25  Ind.  300;  Barrett  v.  Goddard,  3  Mason,  107; 
Patou  v.  Currie,  19  Up.  Can.  Q.  B.  388. 

8  Sumner  v.  Hamlet,  12  Pick.  82  ;  Dennis  v.  Alexander,  3  Barr.  50. 
And  see  Hyde  v.  Lathrop,  2  Abb.  N.  Y.  App.  438  ;  Adams  Mg.  Co.  v. 
Senter,  26  Mich.  73. 

9  Arnold  v.  Delano,  4  Gush.  40  ;  50  Am.  Dec.  754  ;  Crofoot  v.  Ben- 
nett, 2  Comst.  260  ;  Langdoll's  Cases  on  Sales.  772.    And  see  Lockhart 
v.  Paunell,  22  Up.  Can.  C.  P.  537. 

10  See  section  on  PUTTIXG  IXTO  DELIVERABLE  STATE. 

11  See  section  on  SELLEK'S  ACTS. 

12  Fuller  i».  Bean,  34  N.  II.  290,  300.    Basis  of  foregoing  statements 
and  authorities:  Bennett's  Benjamin  on  Sales,  §319,  n.  c',  Macom- 
bor  v.  Parker,  13  Pick.  175, 183 ;  Hubler  v.  Gaston,  9  Or.  60;  42  Am. 
Rep.  704,795;  Dixon  v.  Myers,  7  Gratt.  240,  243;  Stevens  v.  Kno,  10 
Barb.  95,  96.    And  see  Brown  on  Sales,  44  ;  Long  on  Sales  (ed.  1839), 
2G7.    Compare  Laugdell's  Cases  on  Sales,  1026. 


107  SALES  OF  SPECIFIED  CHATTELS.  \  75 

CHAPTER  VIII. 

SALES   OF   SPECIFIED   CHATTELS. 

2  75.  Goods  subject  to  disposition  by  sale. 

2  76.  Goods  mingled  with  others. 

2  77.  Bargain  for  specific  quantity  of  grain. 

2  78.  Identification  of  goods. 

2  79.  Intention  to  retain  title. 

2  80.  Indications  of  such  intention. 

2  81.  Act  remaining  to  be  done. 

2  82.  Unperformed  acts  not  affecting  title. 

2  83.  By  whom  act  to  be  done. 

2  84.  Seller's  acts. 

2  85.  Buyer's  acts. 

\  86.  Putting  into  deliverable  state, 

\  87.  Ascertaining  price. 

2  88.  Price  left  unadjusted. 

1  89.  Distinction  where  sale  complete  and  executed. 

2  90.  Rule  of  presumption  merely. 
2  91.  Weighing,  measuring,  etc. 

2  92.  Intention  to  pass  title. 

2  93.  Special  circumstances. 

2  94.  Acts  to  be  done  after  delivery. 

2  95.  Duty  and  agreement  to  deliver. 

2  96.  Effect  of  delivery. 

2  97.  Assumption  of  risk  by  acceptance. 

I  75.  Goods  subject  to  disposition  by  sale.  —  In  largest 
sense  of  term  "sale."  The  term  "  sale,"  in  its  largest 
sense,1  may  include  every  agreement  for  the  transfer- 
ring of  ownership,2  whether  of  immediate  effect  or  to  be 
completed  afterwards;3  and  goods,  in  reference  to  the 
disposition  of  them  by  sale,  may  be  considered  as 
existing  separately  and  ready  for  immediate  delivery, 
or  as  a  part  of  a  larger  mass  from  which  they  must  be 
separated  by  counting,  weighing,  or  measuring,  or  as 
goods  to  be  hereafter  procured  and  supplied  to  the 
buyer,  or  to  be  manufactured  for  his  use.4 


I   76  SALES  OF   SPECIFIED  CHATTELS.  108 

Under  common-law  sale.  But  goods  of  the  first  sort 
are  the  only  proper  subjects  of  a  common-law  sale, 
which  is  strictly  a  transaction  operating  as  a  present 
transfer  of  property,5  and  does  not  include  executory 
contracts  for  the  future  sale  and  delivery  of  personal 
property.6 

1  Definitions  of  sale,  §  1. 

2  Transfer  of  title  :  See  subsequent  chapter  on  that  subject. 

3  Cunningham  v.  Ashbrook,  20  Mo.  553,  55G. 

4  Cunningham  v.  Ashbrook,  20  Mo.  553,  556. 

5  See  \  9,  on  SALE  OK  EXECUTORY  AGREEMENT. 

6  Cunningham  v.  Ashbrook,  20  Mo.  553,  556.    At  least  such  is  the 
general  rule,  although  there  are  some  apparently  anomalous  cases 
iu  which  transactions  in  reference  to  goods  to  be  separated  from  a 
mass  seem  to  be  treated,  where  there  has  been  a  constructive  deliv- 
ery, as  valid  sales,  producing  a  present  change  of  property :  Cun- 
ningham v.  Ashbrook,  20  Mo.  553,  556.    See  section  on  UNIFORM: 
MASS. 

?  76.  Goods  mingled  with  others.  Need  of  separation, 
identification,  etc.  —  In  general,  the  goods  sold  must  be 
ascertained,  designated,  and  separated  from  the  mass 
"before  the  property  can  pass.1  And  it  is  said  to  be  a 
fundamental  principle  pervading  everywhere  the  law 
of  sales  of  chattels,  that  if  goods  be  sold,  while  mingled 
wkh  others,  by  number,  weight,  or  measure,  the  sale  is 
incomplete,  and  the  title  continues  with  the  seller 2  until 
the  bargained  property  be  separated  and  identified.3 

Passing  of  title  to  goods  clearly  identified.  But  if  the 
goods  sold  are  clearly  identified,  then  the  title  will  pass, 
at  least  according  to  some  of  the  cases,  although  it  may  be 
necessary  to  number,  weigh,  or  measure  the  goods  in 
order  to  ascertain  what  would  be  the  price  of  the  whole 
at  a  rate  agreed  upon  between  the  parties.4  Nor,  as  it 
has  been  declared,  does  it  alter  the  principle  that  pay- 
ment has  been  made  in  whole  or  in  part,  nor  that  they 
are  unfit  for  delivery  at  the  time  of  sale.5 

Commodity  of  uniform  character.  Upon  a  sale  of  a 
specific  quantity  of  grain  or  other  commodity  of  uni- 


109  SALES  OF  SPECIFIED  CHATTELS.  \   77 

form  character,  however,  its  separation  from  a  mass 
undistinguishable  in  quality  or  value,  in  which  it  is 
included,  is  not  necessary,  according  to  some  of  the 
American  cases,  to  pass  the  title  when  the  intention  to 
do  so  is  otherwise  clearly  manifested.6 

Agreement  to  buy  all  the  spring  lambs  of  another. 
And  a  contract  whereby  one  party  agrees  to  buy  all 
the  spring  lambs  of  another,  is  entirely  unlike  the  sale 
of  certain  articles  out  of  a  large  number,  as  there 
is  no  setting  apart  to  be  done,  or  act  of  separation  to 
be  performed  before  the  title  and  risk  pass  to  the 
purchaser.7 

1  Crofoot  v.  Bennett,  2  N.  Y.  258,  259  ;  Langdell's  Cases  on  Sales, 
772,  773.    And  see  2  Kent  Com.  496. 

2  2  Kent  Com.  496.    And  see  Hutchinson  v.  Grand  Trunk  Bail- 
way,  59  N.  H.  487,  489. 

3  Crofoot  v.  Bennett,  2  N.  Y.  258,  259  ;  Langdell's  Cases  on  Sales, 
772,  773.    And  see  Hubler  v.  Gaston,  9  Or.  66  ;  42  Am.  Rep.  794^795. 

4  Crofoot  v.  Bennett,  2  1ST.  Y.  258,  260  ;  Langdell's  Cases  on  Sales, 
772,  773.    And  see  Russell  v.  Carrington,  42  N.  Y.  118  ;  1  Am.  Rep.  498; 
Macomber  v.  Parker,  13  Pick.  175 ;  Riddle  v.  Varnum,  20  Pick.  282  ; 
Tyler  v.  Strange,  21  Barb.  198  ;  Dexter  v.  Bevins,  42  Barb.  573 ;  Bur- 
roVvs  v.  Whitaker,  71  N.  Y.  291 ;  27  Am.  Rep.  42,  45,  46 ;  Brewer  v. 
Salisbury,  9  Barb.  511,  515. 

5  Hubler  v.  Gaston,  9  Or.  66  ;  42  Am.  Rep.  794,  795. 

G  See  Kimberly  v.  Patchin,  19  N.  Y.  330 ;  Langdell's  Cases  on 
Sales,  775  ;  Russell  v.  Carrington,  42  N.  Y.  118,  122;  1  Am.  Rep.  4^8, 
500  ;  McNamara  v.  Edmister,  11  Hun,  597,  601 ;  Hurff  v.  Hires,  40 
N.  J.  L.  5S1  ;  29  Am.  Rep.  282.  But  see  contra,  Ferguson  v.  Northern 
Bank  of  Kentucky,  14  Bush,  555 ;  29  Am.  Rep.  418 ;  Commercial  Nat. 
Bank  v.  Gillette,  90  Ind.  2P,3  ;  43  Am.  Rep.  222. 

7    Bertelson  v.  Bower,  81  Ind.  512,  513,  514. 

§  77.  Bargain  for  specific  quantity  of  grain.  —  Separated 
from  other  grain.  Where  the  terms  of  sale  of  specific 
personal  property,  as  wheat  in  a  store  and  apart  by  it- 
self, are  agreed  on,  and  everything  the  seller  has  to  do 
about  them  is  complete,  and  the  buyer  is  authorized  to 
take  them,  the  contract  of  sale  becomes  absolute  with- 
out actual  payment  or  delivery,  so  that  the  property  is 
in  the  vendee,  and  the  risk  of  loss  by  accident  devolves 
upon  him.1 

NEWMARK  SALES.  —  1O. 


g   78  SALES   OF   SPECIFIED   CHATTELS.  110 

Specified  quantity  of  unseparated  grain.  And  the  same 
is  true  where  the  owner  of  a  large  quantity  of  grain  in 
bulk  sells  a  certain  number  of  bushels  therefrom,  and 
receives  his  pay,  though  none  so  sold  is  separated  from 
the  general  mass.2 

No  specification  of  quantity  or  location.  But  where  no 
specific  quantity  is  bargained  for,  and  from  no  specific 
lot,  but  only  enough  to  nil  whatever  bags  the  vendee 
might  send,  the  property  does  not  pass,  and  the  grain 
is  still  at  the  risk  of  the  seller.3 

1  See  Phillips  v.  Moor,  71  Me.  78  ;  Levasseur  v.  Gary,  3  Atl.  Rep. 
461  ;  Sup.  Ct.  Me.  March  22,  1883. 

2  See  Waldron  v.  Chase,  37  Me.  414  ;  Levasseur  v.  Gary,  3  Atl.  Rep. 
461. 

3  Levasseur  v.  Gary,  3  Atl.  Rep.  461  ;  S.  C.  22  The  Reporter,  304. 

§  78.  Identification  of  goods.  —  Sufficiency  of.  If  the 
goods  are  capable  of  being  identified,  and  by  the  con- 
tract of  sale  are  identified,  that  is  sufficient,  and  the 
property  passes.1  Thus,  if  there  are  one  hundred 
bales  of  cotton,  numbered  from  one  to  one  hundred,  and 
the  contract  is  for  the  fifty  odd  numbers,  or  the  fifty 
even  numbers,  or  any  other  specified  fifty  numbers, 
the  bales  sold  are  identified,  though  not  separated.2 

Designation  by  marking.  A  designation  by  some 
visible  mark  is  a  sufficient  separation,  and  it  is  not 
necessary  that  an  artificial  mark  should  be  made  for 
this  sole  purpose.3  And  if  barrels  have  been  inspected 
and  marked  as  of  different  qualities,  such  as  No.  1,  No. 
2,  No.  3,  and  the  whole  of  that  which  is  marked  No.  1  is 
sold,  a  bill  of  sale  given,  and  a  formal  delivery  made, 
the  property  will  pass  without  any  further  separation 
or  designation,  and  the  delivery  will  have  been  per- 
fected, although  the  barrels  No.  1  are  left  intermingled 
with  other  barrels  which  have  different  marks.4 

1  Arnold  v.  Delano,  4  Gush.  40  ;  50  Am.  Dec.  754,  758. 

2  Arnold  v.  Delano,  4  Gush.  40  ;  50  Am.  Dec.  754,  758. 


Ill  SALES  OF  SPECIFIED   CHATTELS.  £  79 

3  Hopes  v.  Lane,  9  Allen,  502,  510. 

4  Ropes  v.  Lane,  9  Allen,  502,  510.    So  if  there  are  one  hundred 
barrels  marked  No.  1,  and  the  owner  makes  a  contract  to  sell  one 
hundred  and  fifty  barrels  of  that  mark,  and  makes  his  bill  of  sale  and 
formal  delivery,  affirming  that  there  are  that  number  of  barrel?  in 
the  lot,  the  property  in  the  one  hundred  barrels  will  pass  to  the 
vendee  :  Ropes  v.  Lane,  9  Allen,  502,  510. 

$  79,  Intention  to  retain  title.  — Intend ment  in  favor  of 
transfer  of  title.  —  Where  specific  and  ascertained  chat- 
tels are  the  subject  of  a  contract  of  immediate  and 
present  sale,  and  whether  there  be  a  warranty  of  qual- 
ity or  not,  the  property  generally  passes  to  the  purchaser 
upon  the  completion  of  the  bargain,1  and  the  vendor 
thereupon  has  a  right  to  recover  the  price,  unless  from 
other  circumstances  it  can  be  collected  that  the  intention 
was  that  the  property  should  not  at  once  vest  in  the 
purchaser.2 

Unperformed  acts  indicating  contrary  intention.  Such 
an  intention  is  generally  shown  by  the  fact  of  some 
further  act  being  first  required  to  be  done  ;  such  as,  for 
instance,  in  most  cases,  delivery ;  in  some  cases,  actual 
payment  of  the  price ;  and  in  other  cases,  weighing  or 
measuring  in  order  to  ascertain  the  price,  or  marking, 
packing,  coopering,  filling  up  cask  ;,  or  the  like.3  And 
it  is  said  that  if  the  terms  of  the  cor.  ract  do  not  show  an 
intention  of  immediately  passing  [he  property  until 
something  is  done  by  the  seller  befc  -9  delivery  of  pos- 
session, then  the  sale  cannot  be  deei-  ed  perfected,  and 
the  property  does  not  pass  until  that  thing  is  done.4 

1  Transfer  of  title  :  See  subsequent  chapter  on  that  subject. 

2  Heilbutt  r.  Hickson,  Law  R.  7  Com.  P.  438,  449 ;  3  Eng.  Rep.  328, 
337.    And  see  Calcutta  Co.  v.  De  Mattos,  32  Law  .1.  Q.  B.  322,  32j  ;  Gil- 
mour  v.  Supple,  11  Moore  P.  C.  C.  551,  533 ;  Langdell's  Cases  on  Sales, 
624,  632  ;  Morse  v.  Sherman,  106  Mass.  430,  433  ;  Jenkins  v.  Jarrett,  70 
N.  C.  255,  256. 

3  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438,  449  ;  3  Eng.  Rep.  328, 
337.    But  see  Riddle  v.  Varnum,  20  Pick.  283,284.    See  section  on 
INTENTION  TO  TKANSFER  TITLE. 

4  Logan  v.  Le  Mesurier.  G  Moore  P.  C.  C.  116 ;  Langdell's  Cases 
On  Sales,  681,  690, 


§§    80-81          SALES  OF  SPECIFIED  CHATTELS.  112 

\  80.  Indications  of  such  intention.  —  By  various  cir- 
cumstances. Various  circumstances  are  said  to  have 
been  treated  by  the  courts  as  sufficiently  indicating  the 
intention  of  the  parties  that  the  property  shall  not  vest  in 
the  buyer,  and  a  right  to  the  price  in  the  seller,  under  a 
contract  for  the  sale  of  specific  ascertained  goods.1 

Acts  by  seller  on  his  own  behalf.  Thus,  if  it  appears 
that  the  seller  is  to  do  something  to  the  goods  on  his 
own  behalf,  such  as  weighing  them,'2  the  property  will 
not  be  changed  until  he  has  done  it,  or  waived  his  right 
to  do  it.3 

Sellers  acts  for  buyer's  benefit,  etc.  And  another  rule 
which  may  be  extracted  from  a  case  where  casks  were 
not  filled  up  as  agreed,4  is  declared  to  be  that  where  the 
seller  is  to  do  some  act  for  the  benefit  of  the  buyer,  to 
place  the  goods  sold  in  a  state  to  be  delivered,  until  he 
has  done  it  the  property  does  not  pass.5 

1  Gilmour  t>.  Supple,  11  Moore  P.  C.  C.  551  ;  Langd ell's  Cases  on 
Sal os,  (iJ4,  032.  See  \  83,  on  BY  WHOM  ACT  TO  BE  DONE. 

-  >v>e  Hanson  v.  Meyer,  6  East,  014;  Langdell's  Cases  on  Sales, 
639  ;  Ross's  Leading  Cases,  20. 

3  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on 
Sales,  024,  033. 

4  Rugg  ?'.  Minett,  11  East,  210 ;  Langdell's  Cases  on  Sales,  647 ; 
Ross's  Luudi.ig  Cases,  30. 

5  Gilmour  r.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on 
sal  'S,  c.J4,  O.Jo.    So,  also,  if  un  act  remains  to  be  done  by  or  on  behalf 
of  I*  >th  parties  before  the  goods  are  delivered, the  property  is  not 
changed  :  Gilmour  r.  Supple,  11  Moore  P.  C.  C.  551 ;  citing  as  illustra- 
tion, Wallace  v.  Breeds,  13  East,  522  ;  Langdell's  Cases  on  Sales,  739  ; 
Ross's  Leading  Cases,  43. 

I  81.  Act  remaining  to  be  done.  —  By  seller  before  deliv- 
ery. It  is  said  to  be  a  settled  principle  that  where  any- 
thing remains  to  be  done  by  the  vendor  before  the 
article  is  to  be  delivered,1  the  right  of  property  has  not 
passed.2 

Purposes  of  seller's  acts.  But  though  the  authorities 
are  numerous  where  the  expression  is  used,  that  if 
anything  remains  to  be  done  by  the  seller  the  title 


113  SALES   OF   SPECIFIED   CHATTELS.  §   82 

does  not  pass,3  yet  the  cases  which  are  referred  to  in 
order  to  sustain  that  position  are  asserted  to  only  go 
the  length  of  showing  that  the  tide  does  not  pass  where 
something  is  to  be  done  by  the  seller  to  ascertain  the 
identity,  quantity,  or  quality  of  the  article  sold,  or  to 
put  it  in  the  condition  which  the  terms  of  the  contract 
require.4 

Quantity,  quality,  etc.,  to  be  determined  by  vendee. 
And  if  the  goods  are  specified,  and  all  that  was  to  be 
done  by  the  vendor  in  respect  thereto  has  been  done, 
the  title  may  pass,  though  the  quantity  and  quality, 
and  consequently  the  price  to  be  paid  are  still  to  be 
determined  by  the  vendee.5 

Seller's  act  under  buyer's  direction.  So  the  property 
may  pass  by  the  contract  of  sale,  even  if  something  is 
to  be  done  by  the  vendor,  but  only  when  directed  by 
the  vendee,  and  for  his  convenience,  as  for  instance, 
loading  the  goods  upon  a  vessel  for  transportation.6 

1  See  \  86,  on  PUTTING  INTO  DELIVERABLE  STATE. 

2  Ward  v.  Shaw,  7  Wend.  404  ;  Langdell's  Cases  on  Gales,  703,  704. 
And  see  Hale  v.  lluntley,  21  Vt.  1'J,  150.    If  anything  remains  to  b3 
done  on  the  part  of  the  seller,  as  between  him  and  the  buyer  beforo 
the  commodity  purchased  is  to  be  delivered,  a  complete)  present 
right  of  property  has  not  attached  in  tho  buyer :  Hanson  v.  Meyer, 
6  East,  614  ;  Langdell's  Cases  on  Sales,  G3D,  646. 

3  Terry  v.  Wheeler,  25  X.  Y.  520  ;  Langdell's  Cases  on  Sales,  706, 
709.    And  see  Gibbs  v.  Benjamin,  45  Vt.  124, 128 ;  Hale  v.  Huntley,  21 
Vt.  147, 150. 

4  Terry  v.  Wheeler,  25  N.  Y.  520  ;  Langdell's  Cases  on  Sales,  70", 
703 ;  citing,  2  Kent  Com.  496;  Hanson  v.^Meyer,  G  East,  G14 ;  Lang- 
doll's  Cases  oil  Sales,  639  ;  Simmons  v.  Swift,  5  Barn.  &  C.  8o7  ;  Lane:- 
dill's  Cases  on  Sales,  659 ;  Joyce  v.  Adams,  4  Seld.  291 ;  Field  ?•. 
Moore,  Lalor's  Supp.  418.    See  section  on  SOMETHING  TO  UK  DOSTE. 

5  Lingham   v.   Eggleston,  27  Mich.  324,  329;   citing,  Tnrley   v. 
Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales,  6J2  ;  Kohl  v. 
Li:ulley,39lil.  195. 

6  Lingham  v.  EiTgleston,  27  Mich.  324,  329,  and  following  cases 
therein   cited ;    V/lritcomb   v.    Whitney,   21    Mich.    486 ;    Terry   v. 
Wheeler,  25  N.  Y.  520  ;  Langdell's  Cases  on  Sales,  706. 

I  82.  Unperformed  acts  not  affecting  title.  —  Where 
goods  sufficiently  designated.  If  tho  goods  sold  are  suf- 
ficiently designated  so  that  no  question  can  arise  as  to 


§    83  SALES  OF  SPECIFIED   CHATTELS.  114 

the  thing  intended,  it  is  not  absolutely  essential  that 
there  should  be  a  delivery,  or  that  the  goods  should  be 
in  a  deliverable  condition,  or  that  the  quantity  or  qual- 
ity, where  the  price  depends  upon  either  or  both, 
should  be  determined.1  For  all  these  are  circum- 
stances having  an  important  bearing  when  we  are 
seeking  to  arrive  at  the  intention  of  the  parties,  but  no 
one  of  them  13  conclusive,  nor  are  all  combined.2 

Quantity  'may  remain  to  be  ascertained.  Thus  it  is 
said  that  it  is  not  the  law  that  the  right  of  property  in  a 
chattel  cannot  pass  by  a  sale,  so  long  as  the  quantity  of 
the  thing  sold  remains  to  be  ascertained.3  But  it  is 
only  when  something  is  to  be  done  for  the  ascertain- 
ment of  the  quantity  by  the  very  terms  of  the  contract 
that  it  is  incomplete.4 

Various  things  lacking.  And  even  without  express 
words  to  that  effect,  a  contract  has  often  been  held  to 
be  a  completed  sale,  where  many  circumstances  were 
wanting,  and  many  things  to  be  done  by  one  or  both 
the  parties  to  fix  conclusively  the  sum  to  be  paid,  or  to 
determine  some  other  fact  material  to  their  respective 
rights.5 

1  Lingham  v.  Eggleston,  27  Mich.  324,  327. 

2  Lingham  v.  Eggleston,  27  Mich.  324,327.    Intention  to  transfer 
title  :  See  section  on  that  subject. 

3  Dennis  v.  Alexander,  3  Burr.  50,  51 ;  citing,  Scott  v.  Wells,  6 
Watts  &  S.  368. 

4  Dennis  v.  Alexander,  3  Burr.  50,  51.    And  see  Adams  Mining 
Co.  r.  Senter,  26  Mich.  73,  80. 

5  Lingham  v.  Eggleston,  27  Mich.  324,  328. 

\  83.  By  whom  act  to  be  done.  —  Sometimes  deemed  im- 
material. It  is  sometimes  declared  that  it  is  indifferent 
whether  the  act  to  be  done  to  render  the  sale  complete 
is  to  be  done  by  the  buyer,  or  by  the  seller,  or  by  a 
third  person  ; l  and  the  principle  is  said  to  be  well  set- 
tled that  the  title  does  not  pass  when  anything  remains 


115  SALES  OF  SPECIFIED   CHATTELS.  \   83 

to  be  done  "by  either 2  or  both  of  the  parties,  precedent  to 
the  delivery.3 

By  seller,  under  general  view.  But  the  principle  de- 
rived from  the  earlier  leading  cases  upon  the  subject, 
and  involved  in  the  rule  that  where  anything  remains 
to  be  done  to  the  goods  for  ascertaining  the  price,  as 
weighing,  etc.,  the  performance  is  a  condition  precedent 
to  the  transfer  of  the  property,*  has  been  considered  to 
be  that  something  remains  to  be  done  by  the  seller ; 5 
and  it  has  been  doubted  whether  the  statement  of  such 
rule 6  was  meant  to  include  a  case  where  all  that  re- 
mains to  be  done  was  to  be  done  by  the  buyer,  with 
full  authority  from  the  seller  to  do  the  act.7  So  many  of 
the  cases  speak  of  the  act  to  be  done  as  that  of  the 
seller;8  and  in  some  of  the  cases  at  common  law  the 
language  is  said  to  be  capable  of  being  understood  as 
importing  that  if  an  act  remains  to  be  done  between  the 
parties,  it  must,  in  order  to  render  the  sale  imperfect, 
and  prevent  the  property  from  passing,  be  an  act  to  be 
done  by  the  seller,  and  one  necessary  to  designate  and 
identify  the  goods  to  be  sold,9  and  not  an  act  to  be  done 
by  the  buyer,  or  merely  to  ascertain  the  price 10  to  be 
paid.11  Furthermore,  in  a  summary  of  the  law  upon 
the  subject,  as  developed  in  select  cases,  it  is  laid  down 
that  so  long  as  something  remains  to  be  done  to  the 
goods  by  the  seller,  before  the  buyer  is  entitled  to  pos- 
session of  them,  or  before  he  is  bound  to  receive  them 
in  performance  of  the  contract,  the  presumption  is  that 
the  title  remains  in  the  seller.12 

Inconsistent  statements.  But  even  in  the  same  case 
where  it  was  declared  that  if  anything  remains  to  be 
done  "on  the  part  of  the  seller,'*  until  that  is  done  the 
property  is  not  changed,  it  was  said  that  "  the  concur- 
rence of  the  seller  "  in  the  particular  act  to  be  done  was 
necessary.13  So  in  stating  the  rule  as  to  presumptive 


$    83  SALES   OF   SPECIFIED  CHATTELS.  116 

conditions  precedent  to  the  transfer  of  the  property, 
consisting  of  acts  to  ascertain  the  price,  mention  is 
made  of  anything  which  is  to  be  done  "by  the  vendor 
or  by  the  mutual  concurrence  of  both  parties."14  And 
in  a  restatement  of  the  result  of  the  authorities  bearing 
upon  the  rules  of  presumption  governing  the  transfer 
of  title  to  undelivered  specific  chattels,15  it  i.3  said  that 
the  presumption  is  against  a  change  of  ownership,  in 
the  absence  of  circumstances  indicating  a  contrary  in- 
tention, if  something  still  remains  to  be  done  to  the 
chattels  "by  the  seller  alone,  or  by  some  other  person, 
as  an  act  demanding  at  least  the  seller's  concurrence 
under  the  contract  for  his  own  benefit."16 

More  comprehensive  declaration.  Yet  in  considering 
the  various  circumstances  indicative  of  an  intention  that 
the  title  to  specific  chattels  shall  not  pass  to  the  buyer, 
it  is  regarded  as  sufficient  to  prevent  the  change  of  prop- 
erty that  the  vendor  is  to  do  something  to  the  goods  on 
his  own  behalf,  or  for  the  benefit  of  the  buyer,  to  put  the 
goods  in  a  deliverable  state,  or  that  an  act  remains  to  be 
done  by  or  on  behalf  of  both  parties  before  delivery.17 

1  Fuller  v.  Bean,  34  N.  H.  290,  301.    And  also  whether  it  is  to  be 
done  to  ascertain  the  goods  to  be  sold  by  their  designation,  or  meas- 
urement, or  their  quality,  by  the  buyer  or  the  public  inspector,  or 
merely  to  ascertain  the  price  to  be  paid  by  the  appraisal  of  a  third 
person,  or  by  counting,  weighing,  or  the  liko,  or  whether  there  is 
a:i  omission  to  do  any  other  act  necessary  to  enable  the  property  to 
p.iss  in  conformity  to  the  agreement,  such  as  might  be  the  paymert 
of  duties  on  goods  imported,  or  the  transportation  to  a  distant  place  : 
Fuller  v.  Bean,  34  N.  H.  290,  301. 

2  "  If  a  sale  is  not  complete,  if  anything  remains  to  be  done  con- 
cerning tli o  property  by  either  party,  a  present  right  of  property 
does  not  vest  in  the  buyer  " :  Prescott  v.  Locke,  51  ;x.  II.  94,  102. 

3  Gibbs  v.  Benjamin,  45  Vt.  124, 128.    And  see  Prescott  v.  Locke,  51 
N.  H.  04,  102.    Quantity  depend  nt  on  act  or  will  of  third  party: 
Brock  v.  O'Donuell,  45  N.  J.  L.  441,  444. 

4  See  section  on  ASCERTATXTN-G  PRICE. 

5  Turley  v.  Bates,  2  Hurl.  <fc  C.  200 ;  Lnngdell's  Cases  on  Sales,  692, 
699;  reviewing  Hanson  r.  -Meyer,  6  Eust,  614;  Langdell's  Cases  on 
Sales,  6",D  ;   Ilinde  v.  Wfcitehouso,  7  East,  553  ;  Langdell's  Cases  on 


117  SALES   OF   SPECIFIED   CHATTELS.  §    84 

6  In  Blackburn  on  Sales,  152. 

7  Turley  v.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales,  692, 
69S. 

8  See  Ward  v.  Shaw,  7  Wend.  404  ;  Langdell's  Cases  on  Sales,  703» 


646  ;  Rugg  v.  Minett,  11  East,  210 ;  Langdell's  Cases  on  Sales,  647,  651  ; 
Zagury  v.  Furnell,2  Camp.  240  ;  Langdell's  Cases  on  Sales,  052, 653.  Or 
as  to  he  done  on  the  part  of  the  seller :  Simmons  v.  Swift,  5  Barn.  & 
C.  857  ;  Laugdell's  Cases  on  Sales,  659,  662. 

9    See  section  on  IDENTIFICATION-  OP  GOODS. 

10  See  section  on  ASCERTAINING  PRICE. 

11  Fuller  v.  Bean,  34  N.  H.  290,  300,  301,  taking  a  different  view. 

12  Langdell's  Cases  on  Sales,  1026  ;  citing,  Hanson  v.  Meyer,  6  East, 
614;  Langdell's  Cases  on  Sales,  639;  Ru~g  v.  Minett,  11  East,  210; 
Lang:lell's  Cases  on  Sales,  647 ;    Wallace  v.  Breeds,  13  East,  522  ; 
Langdell's  Cases  on  Sales,  739  ;  Zagury  v.  Furneil,  2  Camp.  210  ;  Lang- 
doll's  Cases  on  Sales,  652 ;  Withers  v.  Lyss,  4  Camp.  237 ;  Lang.lcll's 
Cases  on  Sales,  654;  Busk  v.  Davis,  2  Maule  &,  S.  397;  Langdell's  Cases 
on  Sales,  747;  Shepley  v.  Davis,  5  Taunt.  617;  Langdell's  Cases  on  Sales, 
752 ;  Lakller  v.  Burlinson,  2  Mees.  &  W.  602 ;  Langdell's  Cases  0:1 
Sales,  604  ;  Acraman  v.  Morrice,  19  Law  J.  Com.  P.  57  ;  Largdell's 
Cases  on  Sales,  676  ;  comparing  Hinde  v.  Whitehouse,  7  East,  553  ; 
Langdell's  Cases  on  Sales,  102, 109, 110. 

13  See  Simmons  v.  Swift,  5  Barn.  <fe  C.  857  ;   Langdell's  Cases  on 
Sales,  659,  602. 

14  Lingham  v.  Eggleston,  27  Mich.  324,  329. 

15  See  sections  on   PUTTING  INTO   DELIVERABLE   STATE,  and 
ASCERTAINING  PRICK. 

16  2  Schouler  on  Personal  Property,  \  255. 

17  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on 
Sales,  625,  632,  633. 

I  84,  Seller's  acts. —  Weighing  undelivered  portion. 
In  regard  to  acts  to  be  done  to  undelivered  goods  by  the 
seller,  it  has  been  held  where  the  purchasers  became 
bankrupt  before  all  of  the  goods  were  weighed  and  de- 
livered,1 that  the  act  of  weighing  the  portion  not  yet  de- 
livered, which  was  to  be  done  by  warehouse-keepers 
under  the  seller's  orders,  was  one  of  those  things  in  the 
nature  of  conditions  precedent,  or  preliminary  acts  to 
the  vesting  of  the  property  in  the  buyers.2  So  where 
an  agreement  was  made  to  buy  the  bark  stacked  at  a 
certain  place,  so  that  the  subject-matter  of  the  sale  was 
clearly  ascertained,  but  it  was  to  bo  paid  for  at  a  certain 
price  per  ton,  it  was  deemed  necessary  to  ascertain  the 


§    84  SALES   OF  SPECIFIED  CHATTELS.  118 

weight  before  the  total  amount  due  could  be  calculated, 
and  as  the  concurrence  of  the  seller  in  the  act  of  weigh- 
ing, to  be  done  by  representatives  of  both  parties,  was 
regarded  as  essential,  it  was  declared  that  the  property 
had  not  passed  to  the  buyer,  and  that  the  seller  was 
liable  for  injury  by  flood  to  an  unremoved  and  un- 
weighed  portion  of  the  bark.3 

Filling  up  casks.  Again,  it  has  been  lield  that  the 
property  did  not  pass  to  the  buyer  of  certain  casks  of 
turpentine,  which  were  not  filled  up  by  the  seller  accord- 
ing to  contract  at  the  time  they  were  destroj^ed  by  the 
burning  of  the  warehouse,  wherein  they  and  the  other 
casks  bought  with  them  were  to  be  reweighed  and 
guaged.4 

Counting  skins.  And  where  the  seller  of  goat  skins 
had  not  at  the  time  they  were  destroyed  by  fire  counted 
them  over  to  see  whether  each  bale  contained  the  num- 
ber specified  in  the  contract,  as  required  by  the  usage 
of  trade,  it  was  held  that  a:*  this  act  for  the  benefit  of  the 
seller  and  necessary  to  ascertain  the  price  remained  to 
be  done,  there  was  not  a  complete  transfer  to  the  pur- 
chaser, and  the  articles  continued  at  tho  seller's  risk.5 

Trimming  and  severing  parts  of  timber  trees.  Further- 
more, the  bankrupt  seller  has  been  held  entitled  to  hold 
timber  where  the  trees  had  been  felled,  and  selected 
portions  of  the  trunks  marked  out  as  the  subject  of  the 
purchase,  and  had  been  removed  to  a  wharf  for  pur- 
poses of  transmission,  but  had  not  yet  been  topped, 
lopped,  or  sided,  nor  had  the  marked  parts  been  severed 
from  the  bodies  of  the  trees.6 

Measuring  and  delivering  timber.  So  under  the  con- 
struction given  on  the  basis  of  the  intention  of  the  par- 
ties to  a  contract  for  the  sale  of  timber,  stated  to  measure 
a  certain  number  of  feet,  u  more  or  less,"  and  to  be  paid 
for  at  a  specified  rave  per  foot,  "measured  off,"  etc.,  it 


119  SALES  OF   SPECIFIED   CHATTELS.  §   83 

was  held  that  the  seller  was  the  party  to  make  the  meas- 
urement, and  that  the  property  did  not  pass  before 
measurement  and  delivery  at  the  agreed  place.7 

Failing  to  add  up  contents  of  timber  frees.  But  the 
mere  omission  to  add  up  the  total  contents  of  timber 
trees  which  were  marked  and  measured,  where  the 
figures  indicating  the  number  of  cubic  feet  were  pat 
down  on  paper,  has  been  held  too  trifling  an  incident  to 
warrant  a  decision  that  anything  remained  to  be  done 
for  the  completion  of  the  contract.8 

1  Hanson  v.  Meyer,  6  East,  CM ;  Langdell's  Cases  on  Sales,  639. 
Stated  or  note'l :  Messer  v.  Woodman,  22  N.  H.  172, 178,  179 ;  Barrett 
v.  Goddurd,  3  Mason,  107,  1:1  ;  Elgce  Cotton   Cases,  22  Wall.  130,  IS) 4 
(Jilmour  r.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on  Sales, 
Gil,  G.]2,  633. 

2  Hanson  v.  Meyer,  6  East,  6M  ;  Langdell's  Cases  on  Sales,  63:). 
Because  by  the  particular  terms  of  the  contract  whereby  the  pur- 
chase wa-;  of  all  of  the  commodity  that  lay  in  the  warehouse,  more 
or  less,  whatever  it  was,  at  a  specified  sum  per  hundred  weight,  the 
weight  to  be  afterwards  ascertained  at  such  rate,  the  price  was  made 
to  depend  upon  the  weight,  and  no  time-bill  for  the  price  could  yet 
be  given  as   stipulated :    Hanson  v.  Meyer,  6  East,  645.    And  see 
Withers  v.  Lyss,  4  Camp.  237  ;  Langdell's  Cases  on  Sales,  654,  655. 

3  Simmons  v.  Swift,  5  Barn.  &  C.  857  ;  Langdell's  Cases  on  Sales, 
651,  6"2.    But  the  decision  was  mainly  based  upon  the  ground  of  a 
want  of  delivery  under  the  contract :  Simmons  v.  Swift,  5  Barn.  <fe  C. 
857.  .See-x  063  in  Langdell's  Cases  on  Sales.  Case  stated  or  noted:  Elgee 
Cotton  Cases,  HO,  110 ;  Messer  v.  Woodman,  23  N.  H.  172, 17S  ;  Gilmour 
v.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on  Sales,  624,  634. 

4  Rurrg  v.  Minett,  11  East,  210;  Langdell's  Cases  on  Sales,  647; 
noted,  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551  ;  Langdell's  Cases  on 
Sales,  621,  633  ;  Foster  v.  Ropes,  111  Mass.  10,  15. 

5  Zagury  v.  Furnell,  2  Camp.  240;  Langdell's  Cases  on  Sales,  652, 
653.    Compare  facts  of  Burrows  ?'.  Whitaker,  71  N.  Y.  291  ;  27  Am. 
Rep.  42 ;  Prescott  v.  Locke,  51  N.  H.  04. 

6  Acraman  v.  Morrice,  19  Law  J.  Com.  P.  57  ;  Langdell's  Cases  on 
Sales,  676,  G7J,  680. 

7  Logan  v.  Le  Mesurier,  6  Moore  P.  C.  C.  116  ;  Langdell's  Cases  on 
Sales,  631,  6.)l.    Hence  the  purchasers  could  recover  back  the  price 
paid,  and  damages  for  failure  to  deliver,  less  the  value  of  such  timber 
as  was  received,  where  the  raft  of  timber  sold  was  broken  up  by  a 
storm,  and  a  great  part  of  the  timber  lost  before  it  was  measured  and 
delivered  :  Logan  v.  Le  Mesurier,  6  Moore  P.  C.  C.  116.    Case  distin- 
guished, Grilmonr  v.  Snnpl^,  11  Moore  P.  C.  C.  531  ;  Langdell's  Cases 
on  Sales,  621,  034  ;  noted,"  Elgee  Cotton  Cases,  22  Wall.  180, 190. 

8  Tansley  ?>.  Turner,  2  Scott,  238,  241. 

\  85.  Buyer's  acts, —  To  goods  in  his  possession,  etc. 
Though  it  is  a  general  principle  of  the  law  regulating 


I  85  SALES  OF  SPECIFIED   CHATTELS.  120 

sales  of  personal  property,  subject  to  many  qualifica- 
tions, and  varying  with  the  intention  of  the  parties, 
that  the  sale  is  not  completed  when  anything  remains 
to  be  done  to  the  thing  sold  to  identify  it  or  discrimin- 
ate it  from  other  things,1  yet  it  seems  that  where  pos- 
session is  given  to  the  buyer,  and  the  act  necessary  for 
the  designation  of  the  articles  sold  is  to  be  performed 
by  him  and  not  by  the  seller,  title  would  pass  abso- 
lutely to  the  purchaser.'2 

Quantity  to  be  settled.  Thus,  where  a  quantity  of 
goods  was  constructively  delivered  to  the  buyer,  with 
the  understanding  that  if  they  were  not  more  than  he 
had  bargained  for  he  might  keep  them,  but  if  they 
were  mor«,  the  seller  was  to  have  the  balance,  and  a 
creditor  of  the  vendor  attached  the  goods  after  a  small 
portion  of  those  purchased  had  been  set  apart  by  the 
buyer,  the  court  held  that  the  contract  was  executed, 
and  not  executory,  and  that  the  portion  of  the  goods 
which  had  been  included  in  the  bargain  was  not  liable 
to  attachment  for  the  debts  of  the  seller.3 

Reason  of  general  rule.  The  reason  of  the  general 
rule  seems  to  be  that  it  is  for  the  benefit  of  the  vendor 
that  the  property  should  pass,  because  the  risk  of  loss 
is  thereby  transferred  to  the  purchaser,  whilst  the 
vendor  retains  possession  to  secure  payment  of  the 
price.*  Hence,  where  the  agreement  is  that  he  is  to  do 
something  before  he  can  compel  the  purchaser  to 
accept  the  goods,  the  intention  of  the  parties  should  be 
taken  to  be,  that  the  vendor  was  to  do  this  before  he 
obtained  the  benefit  of  the  transfer  of  the  property.5 

When  inapplicable.  But  the  presumption  would  be 
unreasonable  when  the  acts  were  to  be  done  by  the 
buyer,  as  the  latter  would  thus  be  rewarded  for  his  own 
default.6  And  in  general  it  is  the  intention  of  the 
parties  that  the  law  endeavors  to  arrive  at,  and  when 


121  SALES   OF  SPECIFIED  CHATTELS.  §   85 

that  is  ascertained  It  will  usually  determine  the  nature 
of  the  contract.7 

Exact  price  to  be  ascertained.  So  it  has  been  laid 
down  that  where  the  minds  of  the  parties  have  assented 
to  the  present  purchase  and  sale  of  a  specific  chattel, 
which  may  be  clearly  identified  and  separated  from 
other  property,  and  the  sale  is  dependent  on  no  condi- 
tions or  contingencies,  and  such  possession  is  given  as 
tLc  nature  of  the  subject,  and  the  situation  of  the  par- 
ties with  regard  thereto  will  permit  of,  and  the  vendor 
has  done  all  that  is  required  of  him  with  respect  to  the 
property,  the  title  will  pass,  notwithstanding  something 
may  still  be  necessary  on  the  part  of  the  vendee  to 
ascertain  the  exact  price.8 

Casks  to  be  gauged.  In  regard  to  the  effect  of  acts  to 
be  clone  by  the  buyer,  upon  the  passing  of  title  to  spe- 
cific chattels,  it  has  been  held  that  there  was  no  change 
of  ownership  and  risk  where  gauging  by  a  custom- 
house officer  before  removal  of  casks  of  turpentine 
which  had  been  filled  up  and  left  with  tho  bungs  out, 
remained  to  be  done,  as  the  performance  of  this  act  was 
the  buyer's  business,  and  the  sellers  had  done  all  to  the 
goods  that  was  required  of  them.9 

Weighing  of  goods  transferred  on  books.  So  where 
the  identity  of  the  goods  and  the  quantity  are  known, 
so  that  weighing  can  only  be  for  the  satisfaction  of  the 
buyer,  a  transfer  in  the  wharfinger's  books  without 
weighing  has  been  held  sufficient  to  pass  the  property 
as  between  the  buyer  and  seller.10 

Specification  and  'measurement  of  logs.  And  where' 
the  evidence  showed  it  to  be  usual  for  purchasers  of 
rafts,  sometimes  before,  sometimes  after,  they  were 
placed  within  booms,  to  check  over  the  logs  received 
with  the  specification  previously  delivered,  to  see  that 
they  corresponded  with  it,  but  there  was  no  evidence 
NEWMAIIK  SALKS.  — 11. 


§   85  SALES  OF  SPECIFIED  CHATTELS.  122 

of  its  being  usual  to  measure  the  contents  of  each  log 
to  ascertain  the  number  of  feet  contained  in  it,  it  was 
held  that  the  property  passed,  where  from  the  speciil- 
cation  the  buyer  knew  what  quantity  of  timber  the 
seller  would  charge  him  with,  notwithstanding  the  form 
of  the  written  contract,  which  left  it  unascertained.11 

Weighing  of  carted  clay.  Furthermore,  where  the 
buyer  was,  at  his  own  expense,  to  load  and  cart  away 
a  heap  of  fire-clay,  bought  as  a  whole  stack,  and  have 
it  weighed  at  a  machine  which  the  carts  would  pass,  it 
was  held  that  the  parties  had  made  their  intention  suf- 
ficiently clear  that  the  property  should  pass,  notwith- 
standing the  clay  was  to  be  subsequently  weighed;12 
and  it  was  doubted  whether  the  ordinary  rule  against 
the  transfer  of  the  property,  while  acts  to  ascertain  the 
price,  amounting  to  conditions  precedent,  were  unper- 
formed,12 was  meant  to  include  a  case  where  all  that  to 
be  done  was  to  be  done  by  the  buyer  with  full  author- 
ity from  the  seller  to  do  the  act.14 

1  Wells  v.  Littlefield,  59  Tex.  556,  560  ;  citing,  1  Parsons  on  Con- 
tracts. 527 ;  Blackburn  on  Sales.  152  ;  Benjamin  on  Sales,  n  311,  311  a, 
319. 

2  Wells  v.  Littlefield,  59  Tex,  556,  560 ;  citing,  1  Parsons  on  Con- 
tracts, 527  ;  Tarling  v.  Baxter,  6  Barn.  &  C.  360  ;  Langclell's  Cases  o.'i 
Sales,  621 ;  Russell  v    Carrington,  42  N.  Y.  124  ;  1  Am.  Hep.  498  ; 
Blackburn  on  Sales,  152 ;  Benjamin  on  Sales,  \  353 ;  Page  v.  Carpen- 
ter, 10  N.  II.  77. 

3  Page  v.  Carpenter,  16  N.  H.  77. 

4  Wells  v.  Littlefield,  59  Tex.  566,  560. 

5  See  Blackburn  on  Sales,  152. 

6  See  Blackburn  on  Sales,  153. 

7  Wells  v.  Littlefield,  59  Tex.  556,  560.    Hence,  where  cattle  have 
been  actually  delivered  into  the  possession  of  the  purchaser,  and  the 
purchase  money  has  been  virtually  paid,  the  seller,  who  has  done 
all  that  he  agreed  to  do,  is  not  liable  for  any  loss  that  might  accrue 
to  the  property  because  of  any  delay  or  neglect  on  the  part  of  the 
buyer  to  make  the  stipulated  appropriation  of  his  share  of  it :  Wells 
v.  Littlefield,  59  Tex.  556,  560. 

8  King  v.  Jarman,  35  Ark.  190, 197. 

9  Bugg  v.  Minett,  11  East,  210  ;  Langdell's  Cases  on  Sales,  647,  651 ; 
Ross's  Leading  Cases,  30,  35,  36  ;  followed,  McNail  v.  Kelleher,  15  Up. 
Can.  C.  P.  470, 474. 


123  SALES  OF  SPECIFIED  CHATTELS.  g   86 

10  Swan  wick  v.  Sothern,  9  Ad.  &  E.  895  ;  Langdell's  Cases  on  Sales, 
673,  676  ;  citing,  Hammond  v.  Anderson,  1  Bos.  &  P.  N.  11.  69  ;  lloss's 
Leading  Cases,  218  ;  cited,  Gilniour  v.  Supple,  11  Moore  P.  C.  C.  551 ; 
Langdell's  Cases  on  Sales,  624,  634. 

11  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551 ;  Langdell's  Cases  on 
Sales,  6-4.    As  there  was  nothing  to  be  done  by  the  seller  for  himself 
or  for  the  buyer,  or  by  the  concurrence  of  both  parties  either  to 
ascertain  the  price  by  further  measurement,  or  for  any  other  pur- 
pose :  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551. 

12  Turley  v.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales, 
692,  699. 

13  See  section  on  ASCERTAINING  PBICK. 

14  Turley  v.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales, 

602,  698. 

§  83.  Putting  into  deliverable  stats.  —  Need  of,  assies- 
pending  transfer  of  title.  In  the  sale  of  personal  prop- 
erty, the  general  rule  of  law  is  stated  to  be  that  where, 
by  the  terms  of  the  contract,  the  seller  agrees  to  do  any- 
thing for  the  purpose  of  putting  the  property  into  a 
state  in  which  the  buyer  is  bound  to  accept  it,  or  into  a 
condition  to  be  delivered,  the  title  will  remain  in  him 
until  he  has  performed  the  agreement  in  this  respect.1 

Blackburn's  first  rule.  This  doctrine  substantially 
follows  the  familiar  first  rule  of  Lord  Blackburn,2  that 
where  by  the  agreement  the  vendor  is  to  do  anything 
to  the  goods  for  the  purpose  of  putting  them  into  that 
state  in  which  the  purchaser  is  to  be  bound  to  accept 
them,  or,  as  it  is  sometimes  worded,  into  a  deliverable 
state,3  the  performance  of  those  things  shall,  in  the  ab- 
sence of  circumstances  indicating  a  contrary  intention,4 
be  taken  to  be  a  condition  precedent5  to  the  vesting  of 
the  property,6 

By  other  acts  than  weighing  and  measuring.  And 
other  acts  besides  weighing  and  measuring  which  are 
made  requisite  on  the  part  of  the  seller  to  put  the  goods 
in  a  deliverable  state,  in  compliance  with  the  mutual 
contract,  have  been  generally  held  to  postpone  the  vest- 
ing of  the  seller's  property,7  such  as  baling  and  pressing 
a  lot  of  hops,8  scaling  logs,9  drying  and  weighing  fish,10 


g   86  SALES  OF  SPECIFIED  CHATTELS.  124 

marking  steins,  and  otherwise  preparing  tobacco,11  and 
taking  out  and  comparing  samples  of  cotton.1- 

Intention  of  parties  controls.  But  it  lias  been  laid 
down  in  England,  that  if  it  appear  from  the  agreement 
that  the  intention  of  the  parties  is  that  the  property 
shall  pass  presently,  the  property  does  pass,  though 
there  remain  acts  to  be  done  by  the  vendor  before  the 
goods  are  deliverable.13  And  the  American  decisions 
are  said  to  unmistakably  hold  that  any  presumption  of 
a  suspension  of  the  transfer  of  title  may  be  overcome  by 
proof  of  mutual  intention  that  the  property  should  pass 
before  the  thing  was  put  into  a  deliverable  condition.14 

1  Foster  v.  Hopes,  111  Mass.  10, 15.    And  see  Macomber  ?>.  Parker, 
13  Pick.  175, 183  ;  Terry  v.  Wheeler,  25  N.  Y.  520  ;  Langdell's  cases  on 
Sales,  706,  709  ;  Cooke  v.  Millard,  65  N.  Y.  352  ;  22  Am.  Hep.  619,  G28. 

2  See  Elgee  Cotton  Cases,  22  Wall.  180, 193 ;  Foster  v.  Hopes,  111 
Mass.  10, 15. 

3  See  Barrett  v.  Goddard,  3  Mason,  107,  111;   Rugg  v.  Minett,  11 
East,  210  ;  Langdell's  Cases  on  Sales,  647,  651 ;  Gilmour  v.  Supple,  11 
Moore  P.  C.  C.  51 ;  Langdell's  Cases  on  Sales,  624,  635. 

4  Intention  to  transfer  title  :  See  section  on  that  subject. 

5  Condition  precedent :  See  chapter  on  CONDITIONAL  SALES. 

6  Blackburn  on  Sales,  151, 152 ;  quoted,  Langton  ?-.  Higgins,  4  Hurl. 
&  X.  402;  Langdell's  Cases  on  Sales,  8(57,  87J  ;  Elgee  Cotton  Cases,  22 
Wall.  180,  183:  Prescott  v.  Locke,  51  N.  H.  M,  101;  Bennett's  Ben- 
jamin   on    Sales,  #  318;   citing  following    further  cases:   Bailey  ?'. 
Smith,  43  N.  H.  141;  Gilbert  v.  N.  Y.  Cent.  R.  R.  Co.  4  Hun,  378  ; 
Strauss  r.  Ross,  25  Ind.  300  ;  McClung  v.  Kelley,  21  Iowa,  508  ;  Paton 
i».  Currie,  1J  Up.  Can.  Q.  B.  288.    Consult,  also,  1  Corbin's  Benjamin  on 
Sales,  \  3G4  ;  Campbell  on  Sales,  229;  2  Sohouler  on  Personal  Prop- 
erty, g  249.    And  compare  Langdell's  Cases  on  Sales,  1026. 

7  2  Schouler  on  Personal  Property,  §  250. 

8  Iveeler  v.  Vandemere,  5  Lans.  313, 

9  Begole  v.  McKenzie,  23  Mich.  470 ;  Wilkinson  v.  Holiday,  33 
Mich.  336.    But  see  Morrow  v.  Heed,  30  Wis.  8L 

10  Foster  v.  Ropes,  lit  Mass.  10. 

11  Dixon  v.  Myers,  7  Gratt.  240. 

12  Kein  v.  Tupper,  52  N.  Y.  550. 

13  Turley  v.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales,  696  ; 
quoting  Blackburn  on  Sales,  153,  as  citing  Woods  ?>.  Russell,  5  Barn, 
<fe  Adol.  942  ;  Langdell's  Cases  on  Sales,  7:>4  ;  and  Clarke  v.  Spence,  4 
Ad.  <fe  E.  448  ;  Langdell's  Cases  on  Sales,  816. 

14  2  Schouler  on  Personal  Property,  §  250 ;   citing  Cushman  v. 
Hoi  yoke,  34  Me.  2,^3;  Dyer  v.  Libby,  61  Me.  45;  Bemis  v.  Merrill,  38 
Vt.  130  ;  Riddle  v.  Varnu'm,20  Pick.  280  ;  Foster  v.  Ropes,  111  Mass.  10; 
Boswell  v.  Green,  1  Dutch.  800.    Like  effect:  Bennett's  Benjamin  on 


125  SALES  OF   SPECIFIED   CHATTELS.  g   87 

Sales,  §  334,  n.  t ;  citing,  also,  Bethel  Steam  Mill  Co.  v.  Brown,  57 
Me.  y  ;  Fuller  v.  Bean,  34  N.  H.  802  ;  Marble  v.  Moore,  102  Mass.  443 ; 
Terry  v.  Wheeler,  25  N.  Y.  520  ;  Langtiell'a  Cases  on  Sales,  706 ;  Burr 
v.  Williams,  23  Ark.  244  ;  Ford  v.  Chambers,  28  Cal.  13. 

g  87.  Ascertaining1  price.  —  Acts  for,  as  presumptive 
conditiojis  precedent.  Numerous  authorities  are  said  to 
uniformly  hold  that  where  anything  is  to  be  done  by 
the  vendor,  or  by  the  mutual  concurrence  of  both  parties, 
for  the  purpose  of  ascertaining  the  price  of  the  goods,  as 
by  weighing,  testing,  or  measuring  them,  where  the 
price  is  to  depend  upon  the  quantity  or  quality  of  the 
goods,1  the  performance  of  those  things  is  to  be  deemed 
presumptively  a  condition  precedent2  to  the  transfer  of 
tLe  property,3  although  the  individual  goods  be  ascer- 
tained, and  they  are  in  a  state  in  which  they  may  and 
ought  to  be  accepted.4 

Blackburn's  second  rule.  This  statement  of  the  law 
essentially  conforms  to  Lord  Blackburn's  second  rule, 
that  where  anything  remains  to  be  done  to  the  goods  for 
the  purpose  of  ascertaining  the  price,  as  by  weighing, 
measuring,  or  testing  the  goods,  where  the  price  is  to 
depend  on  the  quantity  or  quality  of  the  goods,  the  per- 
formance of  these  things  shall  be  a  condition  precedent 
to  the  transfer  of  the  property,  although  the  individual 
goods  be  ascertained,  and  they  are  in  the  state  in  which 
they  ought  to  be  accepted.5 

Broad  statement  of  doctrine.  More  broadly  it  is  de- 
clared that  the  right  of  property  arid  the  risk  of  loss  are 
not  altered  if  anything  remains  to  be  done  as  between 
the  seller  and  purchaser,  for  the  purpose  of  ascertain- 
ing the  price  of  the  article  which  is  the  subject-matter 
of  the  contract ; 6  and  this  statement  is  illustrated  by 
the  cases  of  hay  to  be  weighed  out  of  a  mow,7  property 
to  be  put  in  a  marketable  condition  and  then  weighed,8 
timber  to  be  measured,9  and  carpeting  sent  to  the 
house  of  the  purchaser  to  be  cut  from  the  roll.10 


§   87  SALES   OF  SPECIFIED  CHATTELS.  126 

Rule  criticised  and  limited.  But  the  rule  itself  has 
been  criticised  by  its  formulator  as  not  distinguishing 
between  acts  of  weighing,  etc.,  preliminary  to  the 
buyer's  taking  possession,  and  these  which  must  be 
done  before  the  vesting  of  the  property  ;  n  and  as  hav- 
ing been  hastily  adopted  from  the  civil  law,12  without 
consideration  of  the  distinction  between  a  fixed  price 
required  by  that  law  and  an  ascertainable  price  alone 
necessary13  under  our  own.14 

Where  object  only  to  satisfy  purchaser.  And  the  dis- 
tinction must  be  observed  between  a  sale  by  measure  or 
weight  requiring  the  weighing  or  measuring  to  be  ac- 
complished for  the  purpose  of  determining  or  fixing  the 
price.15  and  the  sale  of  specific  goods  in  the  lump  at  an 
ascertained  price,  accompanied  with  a  representation  or 
warranty  of  the  weight  or  quality,16  \vhere  the  weighing 
or  measuring  is  necessary  only  for  the  purpose  of  satisfy- 
ing the  purchaser  that  he  has  got  the  quantity  bargained 
for,17  and  the  title  passes  to  the  purchaser  as  soon  as 
the  contract  is  concluded.18 

Where  price  mere  matter  of  computation.  So  the  dis- 
tinction is  taken  between  the  sale  of  a  certain  specific 
lot  of  goods  at  an  agreed  weight,  measurement,  etc.,  and 
on  fixed  terms,  whereby  the  estimated  weight,  etc., 
though  turning  out  to  be  inaccurate,  is  final  between 
the  parties,19  in  which  case  the  title  immediately  passes, 
because  the  ascertainment  of  the  price  at  the  rate  fixed 
is  a  mere  mathematical  computation,20  and  the  sale  of  a 
specific  lot  of  goods  at  a  fixed  rate,  where  the  total  price 
is  to  be  according  to  what  the  goods  may  prove  to  weigh 
or  measure,  in  which  case  there  remains  a  further  test 
to  be  applied  before  the  exact  amount  payable  can  be 
determined.21 

1  Price  generally :  See  previous  chapter  on  that  subject. 

2  Condition  precedent :  See  chapter  on  CONDITIONAL  SALES. 


127  SALES  OF   SPECIFIED   CHATTELS.  \   88 

3  Transfer  of  title  :  See  subsequent  chapter  on  that  subjecc. 

4  Lingham  v.  Eggleston,  27  Mich.  324,  329. 

5  Blackburn  on  Sales,  152  ;  quoted,  Turley  v.  Bates,  2  Hurl.  <fe  C. 
200  ;  Langdell's  Cases  on  Sales,  697, 698  ;  Langton  v.  Higgins,4  Hurl.  <fc 
N.402;  Langdell's  Cases  on  Sales,  8(17,  872  ;  Elgee  Cotton  Cases,  22  Wall. 
180, 188;  Hutchinson  v.  Hunter,  7  Pa.  St.  140,  143;  Prescott  v.  Locke, 
51  N.  H.  94, 10L  ;  Bennett's  Benjamin  on  Sales,  \  319  ;  I  Corbin's  Benja- 
min on  Sales,  §  3G5.    And  compare  Campbell  on  Sales,  229 ;  2  Schouler 
on  Personal  Property,  §  249. 

6  Story  on  Sales,  §  220  6. 

7  Davis  v.  Hill,  3  N.  H.  382. 

8  Ward  v.  Shaw,  7  Wend.  404  ;  Langdell's  Cases  on  Sales,  703. 

9  McDonald  v.  Hewett,  15  Johns.  349. 

10  Andrew  v.  Dieterich,  14  Wend.  31 ;  stated  and  distinguished, 
Brewer  v.  Salisbury,  9  Barb.  511,  513,  514. 

11  See  Turley  v.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales, 
692,  698. 

12  See  Pothier  Contrat  de  Vente,  N"o.  308  ;  La.  Civ.  Code,  art.  2433  ; 
2  Schouler  on  Personal  Property,  g  249  ;  Prescott  r.  Locke,  51  N.  H. 
94, 101. 

13  See  section  on  subject  in  chapter  on  PRICE. 

14  See  Lingham  v.  Eggleston,  27  Mich.  324, 32:),  330  ;  Turley  ?'.  Bates, 
2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales,  d'j2,  698.    Quoting  Black- 
burn on  Sales,  153.    And  consult  Hutchinson  v.  Hunter,  7  Pa.  St.  140, 
143,  144.    Nor  does  the  rule  apply  if  the  parties  have  made  it  suffi- 
ciently clear  whether  or  not  they  intend  that  the  property  shall  pass 
at  once  :  Turley  v.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales, 
692,  699.    For  the  intention  of  the  parties  must  be  looked  at  in  every 
case:  Turley  v.  Bates,  2  Hurl.  &  C.  200.    Citing  in  support,  Logan  r. 
Le  Mesurier,  6  Moore  P.  C.  C.  116  ;  Langdell's  Cases  on  Sales,  6sl ; 
Hinde  v.  Whitehouse,  7  East,  558  ;  Langdell's  Cases  on  Sales,  102 ; 
Blackburn  on  Sales,  151.    See  Martincau  v.  Hitching,  Law  B.  7  Q.  B. 
436,  449  ;  2  Eng.  Rep.  539,  553. 

15  Determination  of  Price :  See  under  chapter  on  PRICE. 

16  Warranty  :  Seo  subsequent  chapter  on  that  subject. 

17  See  2  Schouler  on  Personal  Property,  \  251. 

18  Story  on  Sales,  \  220  c.    See  Walrath  v.  Ingles,  64  Barb.  265,  276  ; 
citing,  Addison  on  Contracts,  225. 

19  See  citations  in  next  note. 

20  See  Welch  v.  Moffatt,  1  Thomp.  cfe  C.  575  ;  Adams  Mining  Co.  v. 
Senter,  26  Mich.  73,  79,  80. 

21  2  Schouler  on  Personal  Property,  §  251.    But  even  in  the  latter 
case,  the  courts  seem  disinclined  to  apply  the  rule  which  suspends 
the  transfer  of  title  and  risk  pending  the  weighing  or  measuring  : 
2  Schouler  on  Personal  Property,  \  251  ;  citing,  Swan  wick  r.  Sothern, 
9  Ad.  <fe  E.  895  ;  Langdell's  Cases  on  Sales,  673  ;  Groat  v.  Gile,  51  X.  Y. 
431;  Riddle  ??.  Varnum,  20  Pick.  280;  Cunningham  v.  Ashbrook,  20 
Mo.  553 ;  Adams  Mining  Co.  v.  Senter,  26  Mich.  73. 

\  88.  Price  left  unadjusted. — Limitation  of  principle.  It 
has  been  said  that  while  it  may  be  true  as  a  general  propo- 
sition that  if  anything  remains  to  be  done  by  either  party 


§   89  SALES  OF  SPECIFIED   CHATTELS.  128 

to  a  contract  for  the  sale  of  personal  property,  to  deter- 
mine the  price,  quantity,  or  identity  of  the  thing  sold,1 
the  title  does  not  vest  in  the  purchaser,  and  the  contract 
is  merely  executory,2  yet  this  principle  must  be  limited 
to  those  cases  in  which  the  evidence  does  not  show  an 
intention  to  make  the  sale  absolute  and  complete, 
without  any  regard  to  the  performance  of  these  usual 
prerequisites,  at  least  as  to  price  and  measurement.3 

Intention  as  to  identified  goods.  And  if  the  goods  are 
completely  identified,  a  complete  sale  of  them  may  be 
made  without  fixing  an  absolute  price,  if  such  be  the 
clear  intention  of  the  parties,  as  legally  evidenced  by  the 
circumstances  attending  the  transaction.4 

1  See  section  on  SOMKTHIXG  TO  BE  DOKE. 

2  See  Allen  v.  Maury,  66  Ala.  10  ;  Chitty  on  Contracts,  10. 

3  Shealy  v.  Edwards,  73  Ala.  175, 173  ;  49  Am.  Rep.  43. 

4  Shealy  r.  Edwards,  73  Ala.  175,  17:» ;  49  Am.  Rep.  43.    As  where 
the  price  was  left  to  be  fixed  by  future  agreement  between  the 
parties,  and  the  goods  were  attached  by  the  seller's  creditor  before 
any  such  agreement  was  reached :  Shealy  v.  Edwards,  73  Ala.  175, 179. 

§  89.  Distinction  where  sale  complete  and  executed. — 
Rule  as  to  price  in  executory  contracts.  The  rule  as  to 
price  in  executory  contracts  of  sale,  is  stated  to  be  that 
it  must  be  certain,  or  capable  of  being  made  certain,1 
so  that  if  it  is  to  be  fixed  by  arbitration,  and  the  arbi- 
trators fail  to  agree,  the  sale  must  be  considered  void.2 

Principle  and  illustration  where  contract  executed.  But 
a  different  principle  is  said  to  prevail  where  the  con- 
tract of  sale  is  complete  and  executed,3  in  which  class 
of  contracts,  where  the  seller,  whether  by  actual  deliv- 
ery or  by  other  like  unequivocal  act,  intentionally 
passes  the  property  in  specific  goods  to  the  purchaser, 
without  fixing  the  price,4  the  law  leaves  the  price  to  be 
adjusted  by  the  agreement  of  the  parties,5  or  in  case 
they  fail  to  agree,  to  be  determined  by  the  verdict  of  a 
jury.6  Hence,  where  a  stock  of  goods,  old  and  new, 


129  SALES  OP  SPECIFIED   CHATTELS.  \  90 

was  sold  and  delivered,  and  the  new  was  disposed  of  at 
invoice  prices,  but  the  old  at  prices  to  be  agreed  on  at  a 
fixed  time  in  the  future,  the  purchaser  giving  his  notes 
for  the  estimated  price  of  the  whole,  to  be  increased  or 
diminished  according  to  the  eventual  agreement  as  to 
the  old  goods,  it  was  held  that  the  title  passed,  and  that 
no  lien  was  acquired  by  a  creditor  of  the  seller  who 
attached  the  goods  before  any  agreement  was  reached 
as  to  the  price  of  the  old  goods.7 

1  See  section  under  chapter  on  PRICE, 

2  Shealy  v.  Edwards,  7  Ala.  175, 181 ;  49  Am.  Hep.  453. 

3  See  g  70,  on  EXECUTORY  SALES  ix  GENERAL. 

4  Price  in  general :  See  preceding  chapter  on  that  subject. 

5  See  under  chapter  on  PRICE. 

6  Shealy  v.  Edwards,  73  Ala.  175,  182 ;  49  Am.  Rep.  453  ;  citing, 
Valpy  v.  Gibson,  4  Com.  B.  837 ;  Macomber  v.  Parker,  13  Pick.  175. 

7  Shealy  v.  Edwards,  73  Ala.  175  ;  49  Am.  Hep.  453. 

$  90.  Kule  of  presumption  merely.  —  Intention,  how 
gathered.  The  question  whether  a  sale  is  completed,  or 
only  executory,  where  no  question  arises  under  the 
statute  of  frauds  and  the  rights  of  creditors  do  not  inter- 
vene, is  one  to  be  determined  from  the  intent  of  the 
parties  as  gathered  from  their  contract,  the  situation  of 
the  thing  sold,  and  the  circumstances  surrounding  the 
sale.1 

Designated  goods.  If  the  goods  sold  are  sufficiently 
designated  so  that  no  question  can  arise  as  to  the  thing 
intended,  it  is  not  absolutely  essential  that  there  should 
be  a  delivery,  or  that  the  goods  should  be  in  a  deliver- 
able condition,  or  that  the  quantity  or  quality,  when 
the  price  depends  upon  either  or  both,  should  be 
determined.2 

Acts  to  determine  price.  But  where  anything  is  to  be 
done  by  the  vendor,  or  by  the  mutual  concurrence  of 
both  parties,  for  the  purpose  of  ascertaining  the  price  of 
the  goods,  as  by  weighing,  testing,  or  measuring  them, 


\   91  SALES  OF  SPECIFIED   CHATTELS.  130 

where  the  price  is  to  depend  upon  the  quantity  or  qual- 
ity of  the  goods,  the  performance  of  these  things  in  the 
absence  of  a  contrary  intent  is  to  be  deemed  presump- 
tively a  condition  precedent  to  the  transfer  of  the  prop- 
erty, although  the  individual  goods  be  ascertained,  and 
they  are  in  a  state  in  which  they  may  and  ought  to  be 
accepted.3 

1  Lingham  ?>.  Eggleston,  27  Mich.  324,  326.    And  the  parties  may 
settle  tiiis  by  the  express  words  of  their  contract,  but  if  they  fail  to 
do  so,  we  must  determine  from  their  acts  whether  the  sale  is  com- 
plete :  Linghain  v.  Eggleston,  27  Mich.  324,  326,  327. 

2  Lingham  v.  Eggleston,  27  Mich.  324,  327.    All  these  are  circum- 
stances having  an  important  bearing  when  we  are  seeking  to  arrive 
at  tiie  intention  of  the  parties,  but  no  one  of  them,  nor  all  combined, 
are  conclusive :  Lingham  v.  Eggleston,  27  Mich.  324,  327. 

3  Lingham  v.  Eggleston,  27  Mich.  324,  329.    See  §  87. 

§  91.  Weighing,  measuring,  etc. —  Course  of  decisions 
in  England.  At  one  time  it  was  held  in  England,  ac- 
cording to  a  statement  of  the  course  of  decisions  in  that 
country,1  that  under  an  agreement  to  purchase  an  entiro 
bulk  at  a  specified  price,  the  property  did  not  pass  if 
the  whole  amount  of  the  purchase-money  depended 
noon  an  ascertainment  by  weight  or  measurement  sub- 
sequently to  be  made.2  This  decision  was  made  in  favor 
of  an  unpaid  vendor,  and  was  afterward  distinguished, 
on  the  ground  that  the  weighing  was  to  be  done  by  the 
seller;3  and  it  was  held  that  the  property  would  pass 
if  such  was  the  intention  of  the  parties,  though  some- 
thing was  to  be  done,  such  as  weighing,  measuring,  or 
testing  the  goods  to  ascertain  the  contract  price,  if  what 
remained  to  be  done  was  to  be  done  by  the  buyer.4 
Still  later,5  the  English  courts  entirely  repudiated  this 
distinction,  and  held  in  cases  where  the  weighing  was  to 
be  done  by  the  seller,  the  property  would  pass,  if  the 
parties  so  intended,  though  the  ultimate  contract  price 
was  to  be  ascertained  by  a  subsequent  weighing,6  it 
being  said  that  it  is  equally  clear,  in  point  of  principle 


131  SALES  OF  SPECIFIED  CHATTELS.  §  91 

and  in  point  of  common  sense,  that  there  is  nothing  to 
prevent  a  man  from  passing  the  property  to  the  thing 
he  proposes  to  sell  and  the  buyer  proposes  to  buy, 
although  the  price  remains  to  be  ascertained  afterwards.7 
And  it  is  declared8  that  it  may  now  be  considered  to  be 
the  law  of  the  English  courts9  that  where  the  contract 
price  has  been  paid  or  advances  made  on  it,  the  prop- 
erty will  pass  to  the  buyer  according  to  the  intention  of 
the  parties,  although  something  remains  to  be  done  by 
the  seller  to  complete  the  goods,  in  conformity  with  the 
contract,  before  they  are  delivered.10 

American  view  of  sufficiency  of  identification.  In  this 
country  the  English  rules  are  stated  and  applied  writh 
some  diversity.11  Thus  it  is  sometimes  said  that  the 
reason  why  marking,  measuring,  weighing,  etc.,  are 
necessary,  is  that  the  particular  goods  may  be  identi- 
fied ; 12  but  that  the  property  passes  if  the  goods  are 
capable  of  being  identified,  and  by  the  contract  of  sale 
are  identified.13  Accordingly  a  subsequent  weighing 
or  measuring  merely  to  determine  the  full  price  at  a 
fixed  rate  is  considered  u  to  constitute  no  obstacle  to  the 
passing  of  property.15 

American  views  of  intention  and  presumption.  So 
while  many  of  the  decisions  leave  each  case  to  stand  on 
its  own  special  circumstances,  with  intention  of  the 
parties  as  the  criterion  to  determine  whether  the  title  has 
passed  arid  no  strong  presumption  governing  the  mat- 
ter,16 certain  cases  allow  any  presumption  on  the  subject 
to  be  readily  overcome  on  the  ground  of  a  mutual  intent 
to  the  contrary,  express  or  implied,  where  the  goods, 
though  not  yet  weighed  or  measured,  were  otherwise 
ready  for  delivery,17  especially  if  payment  of  the  price 
had  already  been  made  or  arranged  between  the  parties.18 

Unpaid  price  as  factor.  And  many  of  the  cases  turn 
on  the  unfulfilled  condition  precedent19  of  paying  the 


§  91  SALES  OF  SPECIFIED  CHATTELS.  132 

price  before  a  title  shall  vest  in  the  buyer,20  rather  than 
the  want  of  weighing,  measuring,  or  putting  the  goods 
into  a  deliverable  state.21 

Presumptive  postponement  of  change  of  ownership.  But 
<•  ther  cases  are  decided  on  the  principle  that  weighing 
and  measuring  with  the  seller's  concurrence  postpones 
presumptively  the  change  of  ownership,22  as  where 
wood  was  sold  at  so  much  per  cord,  and  a  subsequent 
measurement  was  part  of  the  bargain,  but  while  the 
parties  were  disputing  as  between  "  running  measure  " 
or  u  solid  cords,"  the  wood  floated  away  and  was  lost.23 

1  Hurff  ?».  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  282,  285. 

2  Hanson  r.  Meyer,  6  East,  614  ;  Langdell's  Cases  on  Sales,  639. 

3  Turley  r.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales,  692. 

4  Turley  r.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales,  692. 
This  distinction  was  adopted  in  Bos  well  v.  Green,  1  Dutch,  390. 

5  According  to  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  282, 286. 

6  See  citations  in  next  note. 

7  Martin  eau  v.  Kitching,  Law  B.  7  Q.  B.  436  ;  Castle  v.  Playford, 
Law  R.  7  Ex.  98. 

8  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  282,  286. 

9  See  citations  in  next  note. 

10  Young  v.  Matthews,  Law  R.  2  Com.  P.  127  ;  Langdell's  Cases  on 
Sales,  S75 ;  Langton  v.  Waring,  13  Com.  B.  N.  S.  315. 

11  2  Schouler  on  Personal  Property.  ?  250. 

12  Arnold  v.  Delano,  4  Gush.  40  ;  50  Am.  Dec,  754,  758.    For  if  ten 
barrels  of  oil  are  sold,  lying  in  a  tank  of  thirty  barrels,  the  buyer  can 
identify  no  part  of  it  until  it  is  measured  :  Arnold  v.  Delano,  4  Cush. 
40.    And  so  if  fifty  bales  of  cotton  are  sold  out  of  one  hundred,  no 
particular  bales  are  identified  until  separation  :  Arnold  v.  Delano,  4 
Cush.  40. 

13  Arnold  v.  Delano,  4  Cush.  40  ;  50  Am.  Dec.  754,  758. 

14  2  Schouler  on  Personal  Property,  \  250,  citing  cases  in  next  note. 

15  Crofoot  r.  Bennett,  2  Comst.  25S  ;  Langdell's  Cases  on  Sales,  772 ; 
Riddle  v.  Varnum,  20  Pick.  2SO  ;  Southwestern  Freight  Co.  v.  Stanard, 
44  Mo.  71 ;  Adams  Mining  Co.  v.  Seiner,  26  Mich.  73. 

16  See  section  on  SPECIAL  CIRCUMSTANCES. 

17  See  citations  in  next  note. 

18  See  Riddle  v.  Varnum,  20  Pick.  280;  Fitch  v.  Burk,  38  Vt.  683  ; 
Groat  v.  Gile,  51  N.  Y.  431 ;  Boswell  v.  Green,  1  Dutch.  3JJO:  Cummins 
v.  Griggs,  2  Duval,  87 ;  Brown  v.  Child,  2  Duval,  314 ;  all  so  cited,  2 
Schouler  on  Personal  Property,  \  25.  • 

19  Conditions  precedent :   See  under   chapter  on  CONDITIONAL 
SALES. 

20  2  Schouler  on  Personal  Property,  \  250. 


133  SALES  OF   SPECIFIED   CHATTELS.  g   92 

21  Putting  into  deliverable  state  :  See  previous  section  on  that 
subject. 

22  Gibbs  v.  Benjamin,  45  Vt.  124;   Fuller  v.  Bean,  34  N.  H.  290; 
Wittowsky  v.  Wasson,  71  N.  C.  451 ;  Bailey  ?'.  Long,  24  Kan.  90 ;  Jones 
v.  Pearce,  25  Ark.  545 ;  Frost  v.  Woodruff,  54  111.   155 ;  J  ,ingtmm  v. 
Eggleston,  27  Mich.  324. 

23  Gibbs  v.  Benjamin.  45  Vt.  124 ;  2  Schouler  on  Personal  Property* 
§  250.    And  see  Nesbitt  v.  Burry,  25  Pa.  St.  208. 

\  92.  Intention  to  pass  title, —  To  unweighsd  fire-clay. 
The  intention  of  the  parties  must  be  looked  at  in  every 
case;1  and  effect  will  be  given  thereto  on  a  sale  of  a 
heap  of  fire-clay,  where  the  parties  have  made  it  suffi- 
ciently clear  that  it  was  their  intention  that  the  property 
in  the  whole  heap  should  pass,  notwithstanding  the  clay 
was  to  be  weighed  at  the  machine  of  a  third  party.2 

To  unfinished  bricks.  So  the  well-known  general  rule 
that  the  property  does  not  pass  to  the  buyer  while  any- 
thing remains  to  be  done  by  the  seller,  either  to  com- 
plete the  goods  or  to  ascertain  the  price,  has  been  held 
inapplicable  where  the  intention  of  the  parties  was  con- 
sidered to  be  that  the  property  in  bricks  should  pass, 
whether  finished  or  not.3 

To  cotton-waste  not  fully  weighed.  And  wrhere  cotton 
spinners  agreed  to  purchase  four  stacks  of  cotton- waste 
in  the  warehouse  of  another  spinner,  and  subsequently 
had  the  waste  packed  into  eighty-one  sacks,  and 
twenty-one  sacks  were  afterwards  weighed  and  taken 
to  the  buyers'  premises,  but  were  returned  the  same 
day  by  the  buyers  on  account  of  objection  to  the  qual- 
ity, and  left  loaded  on  a  cart  outside  the  seller's  ware- 
house, to  which  they  were  removed  by  the  seller  to 
prevent  them  from  spoiling,  it  seemed  to  be  considered 
that  the  property  had  passed,  though  a  portion  of  the 
sacks  had  not  been  weighed,  in  view  of  the  finding  of 
the  jury  that  the  contract  was  to  buy  four  stacks  of 
cotton-waste  specifically  agreed  on,  more  or  less,  for 
better  or  for  worse.4 

NEWMAKK  &ALF.S.  — 12. 


Hi 


g§   93-94          SALES  OF   SPECIFIED   CHATTELS.  134 

1  Turley  v.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases  on  Sales,  692, 
699.    In  determining  whether  the  parties  have  agreed  that  the  sale 
should  not  be  complete,  and  the  title  should  not  pass  before  some- 
thing was  done  to  ascertain  the  price,  the  question  must  always  be, 
what  was  the  intention  of  the  parties  in  this  respect,  which  is,  of 
course,  to  be  collected  from  the  terms  of  the  contract :  Logan  v.  Le 
Mesurier,  6  Moore,  P.  C.  C.  116 ;  Langdell's  Cases  on  Sales,  681,  690. 

2  Turley  v.  Bates,  2  Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales, 
692,  699 ;  citing,  also,  Hinde  v.  Whitehouse,  7  East,  558  ;  Langdell's 
Cases  on  Sales,  102, 109. 

3  Young  v.  Matthews,  Law  R.  2  Com.  P.  127  ;  Langdell's  Cases  on 
Sales,  875,  876. 

4  Kershaw  v.  Ogden,  3  Hurl.  &  C.  717  ;  Langdell's  Cases  on  Sales, 
700, 702 ;  following,  Turley  v.  Bates,  2  Hurl.  &  C.  200  ;  Langdell's  Cases 
on  Sales,  692,  699. 

g  93.  Special  circumstances. —  Govern  while  intention 
criterion.  It  has  been  declared  that  so  long  as  courts 
permit  intention  to  enter  into  the  determination  of 
questions  such  as  those  concerning  the  transfer  of  title 
to  specific  chattels,  so  long  will  cases  be  left  to  be  deter- 
mined by  their  own  peculiar  facts  and  circumstances.1 

Absence  of  strong  presumption.  And  it  has  been 
pointed  out  that  the  tendency  of  many  of  the  American 
cases  is  to  let  each  case  go  upon  its  own  special  basis, 
upon  consideration  of  the  proof  and  upon  the  criterion 
of  the  intention  of  the  parties,2  without  any  very  strong 
presumption  for  or  against  the  transfer  of  title.3 

1  Halterline  v.  Bice,  62  Barb.  597,  598. 

2  See  2  Schouler  Personal  Property,  §  250,  citing  cases  next  given. 

3  See  Hyde  v.  Lathrop,  3  Keyes,  497  ;  Groat  v.  Gile,  51  N.  Y.  431 ; 
Hutchinson  v.  Hunter,  7  Pa.  St.  140  ;  Marble  v.  Moore,  102  Mass.  443  ; 
Southwestern  Freight  Co.  v.  Stanard,  44  Mo.  71. 

g  94.  Acts  to  be  done  after  delivery.  —  Delivery  as  indic- 
ative of  intent  to  vest  title.  —  The  most  important  fact  in- 
dicative of  an  intent  that  the  title  shall  pass  is  generally 
that  of  delivery.1  And  if  the  goods  are  completely  de- 
livered to  the  purchaser,  it  is  usually  very  strong  if 
not  conclusive  evidence  of  intent  that  the  property 
shall  vest  in  him  and  be  at  his  risk,  notwithstanding 
weighing,  measuring,  inspection,  or  some  other  act  is 
to  be  done  afterwards.2 


135  SALES  OF  SPECIFIED   CHATTELS.  \   95 

Acts  regarded  as  for  adjustment  of  price.  Thus  it  is 
declared  that  where  the  goods  are  actually  delivered, 
that  shows  the  intent  of  the  parties  to  complete  the  sale 
by  the  delivery,  and  the  weighing,  or  measuring,  or 
counting  afterwards  would  not  be  considered  as  any 
part  of  the  contract  of  sale,  but  would  be  taken  to  refer 
to  the  adjustment  of  the  final  settlement  as  to  the 
price.3 

Broader  statement  of  rule.  More  broadly,  in  some 
respects,  it  is  stated  that  the  general  rule  against  trans- 
fer of  title  until  performance  of  an  act  stipulated  to  be 
done  by  the  seller  will  not  prevail  where,  by  the  terms 
of  the  agreement,  the  title  is  to  vest  immediately  in  the 
buyer,  notwithstanding  something  remains  to  be  done 
to  the  goods  by  the  seller  after  delivery.4 

Constructive  and  actual  delivery.  So  the  rule  that  the 
property  does  not  pass  when  anything  remains  to  be 
done  has  been  said  to  apply  only  to  cases  of  construct- 
ive delivery  and  constructive  possession,  and  not  to 
cases  where  there  is  an  actual  delivery,5 

1  Lingham  v.  Eggleston,  27  Mich.  324,  328.    And   see  Shealy  v. 
Edwards,  73  Ala.  175, 181  ;  49  Am.  Rep.  453. 

2  Lingham  v.  Eggleston,  27  Mich.  324,  328 

3  Macomber  v.  Parker,  13  Pick.  175, 183.    So  that  the  sale  would 
be  as  complete  as  a  sale  upon  credit,  before  the  actual  payment  of 
the  price :  Macomber  v,  Parker,  13  Pick.  175, 183  ;  quoted,  Messer  v. 
Woodman,  22  N.  H.  172, 180  ;  53  Am.  Dec.  416. 

4  See  Foster  v.  Ropes,  111  Mass.  10, 15. 

5  See  Sumner  v.  Hamlet,  12  Pick.  76,  83 ;  "Kelsea  v.  Halnes,  41 
N.  H.  246,  254.    Compare  Orcutt  v.  Nelson,  1  Gray,  536, 54£ 

§  95.  Duty  and  agreement  to  deliver.  —  Duty  of  seller 
or  of  buyer  as  affecting  state  of  goods.  It  is  sometimes 
the  duty  of  the  seller,  under  a  contract  of  sale,  to  de- 
liver the  goods,  and  sometimes  the  duty  of  the  buyer  to 
come  and  take  them;1  so  that  in  one  transaction  the 
seller  might  have  to  put  his  goods  in  a  deliverable  state 
and  then  deliver,  while  in  another  he  needs  only  to 


2   96  SALES  OF  SPECIFIED   CHATTELS.  136 

have  the  goods  in  condition  for  delivery,  and  then  give 
the  buyer  notice  to  come  and  take  them.2 

Special  undertaking  to  deliver.  And  a  special  under- 
taking, on  the  seller's  part,  to  convey  the  purchased 
goods  to  a  certain  point  for  the  buyer's  convenience,  is 
not  inconsistent  with  the  previous  transfer  of  owner- 
ship3 by  mutual  consent.4 

Illustrations.  Thus,  where  on  a  sale  of  lumber  then 
in  the  vendor's  yard,  the  pieces  sold  were  selected  and 
designated,  and  the  price  paid,  but  the  vendor  agreed 
to  deliver  the  lumber  at  a  railroad  station,  it  was  held 
that  this  act  to  be  done  by  the  vendor  did  not  prevent 
the  passing  of  the  title,  and  the  risk  of  loss  by  fire  to  the 
purchaser  by  a  sale  otherwise  complete.5  And  a  sur- 
vey of  a  large  quantity  of  logs  landed  on  a  stream 
preparatory  to  driving  by  a  person  mutually  agreed 
upon  by  the  parties  to  a  sale,  and  the  vendor's  putting 
the  purchaser's  mark  on  such  logs  as  they  were 
landed,  has  been  held  to  constitute  a  sufficient  delivery 
to  pass  the  title,  even  as  against  subsequent  purchasers, 
although  by  the  terms  of  the  contract  of  sale  the 
vendor  was  bound  to  deliver  the  logs  at  a  specified 
place  many  miles  below  the  landing.6 

1  2  Schouler  on  Personal  Property,  2  254,  whence  next  paragraph 
also  derived. 

2  Compare  Logan  v.  Le  Mesurler,  6  Moore  P.  C.  C.  116 ;  Lang- 
dell's  Cases  on  Sales,  681,  with  following  cases :  Waldron  r.  Chase, 
37  Me.  414  ;  Whitcomb  v.  Whitney,  24  Mich.  486  ;  Bond  v.  Greenwald, 
4  Heisk.  453  ;  Martineau  v.  Kitching,  Law  R.  7  Q.  B.  436  ;  2  Eng.  Rep. 
50J. 

8  2  Schouler  on  Personal  Property,  \  251 ;  citing  cases  in  nexfc 
note. 

4  See  Dyer  v.  Libby,  01  Ma.45.    Weighing  and  marking  the  goods 
with  the  purchaser's  name  are  always  regarded  as  very  significant 
facts  bearing  on  a  delivery  :  Beiley  v.  Long,  24  Kan.  00. 

5  Terry  v.  Wheeler,  25  X.  Y.  520 ;  Langdell's  Cases  on  Sales,  706, 709. 

6  Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  9. 

§  96,  Effect  of  delivery.  —  Presumption  of  finality  of 
transfer.  —  Wherever  the  goods  are  actually  delivered. 


137  SALES   OF  SPECIFIED   CHATTELS.  §   96 

it  is  regarded  as  reasonable  to  presume  that  the  parties 
intended  this  as  the  final  act  of  transfer,1  save  so  far  as 
the  question  of  payment  as  a  condition  precedent  may 
arise,2  and  that  any  subsequent  acts  of  weighing  or 
measuring  must  have  had  reference  to  the  buyer's  con- 
venience, or  to  an  adjustment  of  the  total  price  which 
was  by  mutual  agreement  deferred  to  the  vesting  of 
property  in  the  buyer.3 

By  whom  act  to  be  done  after  delivery.  And  it  has 
oeen  distinctly  held,  though  upon  proof,  not  presump- 
tion, that  the  property  in  the  goods  may  pass,  even 
though  something  remains  to  be  done  to  them  by  the 
seller  after  their  delivery,4  while  it  is  considered  that 
the  presumption  of  a  completed  transfer  of  property 
must  be  far  stronger  where  miscellaneous  acts  subse- 
quent to  delivery  are  to  be  performed  solely  by  the 
buyer,  or  on  his  behalf,  and  not  on  the  sellers.5 

Delivery  not  conclusive  to  show  vesting  of  title.  Yet 
while  delivery  is  usually  the  most  significant  fact  to 
prove  the  transfer  of  title,6  it  is  not  conclusive,7  for  there 
may  be  either  an  express  or  an  implied  contract  of  the 
parties  to  the  contrary.8 

1  2  Schouler  on  Personal  Property,  \  254,  citing  cases  given  in 
note  after  next. 

2  See  section  under  CONDITIONAL  SALES. 

3  See  Riddle  v.  Varnum,  20  Pick.  2SO  ;  Odell  v.  Boston  &  Marine 
B.  R.  103  Mass.  50  ;  Kelsea  v.  Haines,  41  N.  H.  247,  254  ;  Gush  man  v. 
Holyoke,  34  Me.  289  ;  Cunningham  y.  Ashbrook,  20  Mo.  55-i ;  Burr  v. 
Williams,  23  Ark.  244  ;  King  v.  Jarman,  35  Ark.  190.    Delivery  and 
acceptance  of  an  absolute  bill  of  sale  of  the  goods  favors  the  pre- 
sumption that  the  title  has  passed,  though  something  may  remain 
to  be  done  to  the  goods,  such  as  weighing  to  fix  the  exact  price  at  a 
rate  already  agreed  upon  :  Shepard  v.  .Lynch,  20  Kan.  377. 

4  Greaves  v.  Hepke,  2  Barn.  &  Aid.  131 ;  Hammond  v.  Anderson, 
1  Bos.  &  P.  N.  R.  6J  ;  Ross's  Leading  Cases,  218. 

5  2  Schouler  on  Personal  Property,  £  254,  whence  cases  in  last 
note  derived. 

6  See  Shealy  v.  Edwards,  73  Ala.  175, 181 :  49  Am.  Rep.  453  :  Ling- 
ham  v.  Eggleston,  27  Mich.  324,  328. 

7  2  Schouler  on  Personal  Property,  \  254, 

8  Wilkinson  v.  Holiday,  33  Mich.  386. 


§   97  SALES  OF  SPECIFIED   CHATTELS.  138 

$  97.  Assumption  of  risk  "by  acceptance,  —  In  general. 
By  accepting  the  specific  chattel  as  his  own,  under  a 
delivery,  the  buyer  might  well  be  supposed  to  have 
waived  all  claim  to  a  delayed  transfer  of  property  aris- 
ing out  of  further  acts  which  remain  to  be  performed,1 
and  a  like  reasoning  might  apply  for  shifting  the  pre- 
sumptions, in  case  the  risks  of  delivery  had  been 
specially  assumed  by  the  buyer.2 

Express  undertaking.  Whether  it  be  conceived  that 
the  property  had  passed  or  not,  in  the  latter  instance  it 
is  clearly  decided  that  the  buyer  is  liable  for  destruc- 
tion of  the  goods  caused  through  no  fault  of  the  seller, 
and  is  bound  to  the  payment  of  the  agreed  price,  wher- 
ever he  has  specially  contracted  to  bear  the  risk  of 
deliver}^,3  for  this  would  be  but  enforcing  a  fulfillment 
of  his  own  express  undertaking.* 

1  See  Burr  v.  Williams,  23  Ark.  244. 

2  2  Schouler  on  Personal  Property,  §  254. 

3  See  section  on  ASSUMPTION  OF  BISK,  in  chapter  on  TRAXSFKR 
OF  TITLE. 


4  2  Schouler  on  Personal  Property,  ?254;  citing,  Martineau  v. 
Kitching,  Law  R.  7  Q.  B.  4:36;  2  Eng.  Rep.  539;  Castle  v.  Playford, 
Law  R.  5  Ex.  105  ;  Law  R.  7  Ex.  98  ;  1  Eng.  Rep.  204. 


139  SALES   OF   UNSPECIFIED   CHATTELS.  £   98 


CHAPTER    IX. 

SALES  OF    UNSPECIFIED    CHATTELS, 

2    98.  Need  of  specification. 

§    99.  Object  to  be  effected. 

2  100.  Identification. 

|  101.  Warehouse  receipt  for  undesignated  goods. 

g  102.  Delivery  of  unidentified  goods. 

§  103.  Selection  and  separation. 

§  104.  When  trover  not  maintainable. 

1  105.  Quasi  cotenancy. 

5  1C6.  Estoppel  of  custodian. 

2  107.  Intention  and  indications  thereof. 
I  108.  Weighing  or  separation. 

I  109.  Distinguishing  from  mass. 

g  110.  No  selection  necessary  where  mass  uniform. 

\  111.  Intention  as  criterion. 

§  112.  Separation  from  uniform  mass. 

§  113.  Illustrative  cases. 


98.  Need  of  specification.  —  For  present  sale  of  chat- 
tels not  specific.  Goods  existing  as  a  part  of  a  larger 
mass,  from  which  they  must  be  separated  by  counting, 
weighing,  or  measuring,  or  which  are  hereafter  to  be 
procured  and  supplied  to  the  buyer,  or  which  are  to  be 
manufactured  for  his  use,  are  not  ordinarily  considered 
the  proper  subjects  of  a  common-law  sale,  presently 
passing  the  title,  but  only  of  an  executory  contract  for 
the  future  sale  and  delivery  of  personal  property,1 
And  under  a  contract  of  sale  of  chattels  not  specific,  it 
is  generally  indispensable,  before  there  can  be  an  act- 
ual transfer  of  property,  to  make  the  subject-matter 
specific,  or  in  other  words,  to  appropriate  particular 
chattels  to  the  contract.2 

Illustrative  case.    Thus,  it  has  been  held  that  a  suit  is 
not  maintainable  for  the  price  of  eight  thousand  bushels 


$    98  SALES  OF  UNSPECIFIED   CHATTELS.  140 

of  corn  sold  under  a  written  contract  which  did  not 
specify  what  corn  was  meant,  as  no  title  had  passed  for 
want  of  specification.3 

Statement  of  fundamental  rule.  The  fundamental 
rule  applicable  is  said  to  be  that  the  parties  must  be 
agreed  as  to  the  specific  goods  on  which  the  contract  is 
to  attach  before  there  can  be  a  bargain  and  sale.4  The 
goods  must  be  ascertained,  designated,  and  as  gener- 
ally held,  separated  from  the  stock  or  quantity  with 
which  they  are  mixed,  before  the  property  can  pass.5 

Presumption  as  to  goods  not  separated,  etc.  Until  this 
is  done,  the  presumption  is  asserted  to  remain  that  the 
agreement,  still  executory,  contemplates  a  postpone- 
ment in  the  mean  while  of  the  transfer  of  property ; « 
and  it  is  declared  evident  that  trover  or  replevin  can- 
not be  maintained  for  goods  which  are  not  as  yet 
identified,  but  exist  only  as  part  of  a  mass  awaiting 
separation.7 

Reason  of  rule.  The  reason  of  the  rule  requiring 
separation  and  identification  of  goods  mingled  with 
others  is  stated  to  be  that  the  sale  cannot  apply  to  any 
article  until  it  is  clearly  designated,  and  its  identity  ' 
thus  ascertained.8  For  the  law  is  declared  to  know  no 
such  thing  as  a  floating  right  of  property,  which  may 
attach  itself  either  to  one  parcel  or  the  other,  as  may  be 
found  convenient  afterwards.9  Until  the  parties  are 
agreed  as  to  the  specific  identical  goods,  the  contract 
can  be  no  more  than  a  contract  to  supply  goods  answer- 
ing a  particular  description;10  and  since  the  vendor 
would  fulfill  his  part  of  the  contract  by  furnishing  any 
parcel  of  goods  answering  that  description,  it  is  laid 
down  as  clear  that  there  can  be  no  intention  to  transfer 
the  property  in  any  particular  lot  of  goods  more  than 
another,  until  it  is  ascertained  which  are  the  very  goods 
sold.11 


141 


SALES  OF  UNSPECIFIED   CHATTELS.  $   99 


1  See  Cunningham  v.  Ashbrook ,  20  Mo.  653,  556. 

2  2  Schouler  on  Personal  Property,  §  256.    Like  effect :  Blackburn 
on  Sales,  122,  128  ;  Bennett's  Benjamin  on  Sales,  §352,  citing  following 
American  cases  :  Warren  v.  Buckminster,  24  N.  H.  336  ;  Browning  v. 
Hamilton,  42  Ala.  484  ;  Indianapolis  R.  W.  Co.  v.  Maguire,  62  Ind.  140  ; 
Smyth  v.  Exec'rsof  Ward,  46  Iowa,  33'J;  Dunning  v.  Gordon,  4  Up. 
Can.  Q.  B.  399;  Middlebrook  v.  Thompson,  19  Up.  Can.  Q.  B.  307; 
McDougall  7'.  Elliott,  20  Up.  Can  Q.  B.  2.)9 ;  Cox  v.  Jones,  24  Up.  Can. 
Q.  B.  81 ;  Robertson  v.  Strickland,  28  Up.  Can.  Q.  B.  221 ;   Pew  r. 
Lawrence,  27  Up.  Can.  C.  P.  402  ;  Levey  v.  Loundes,  2  Low.  Can. 
257. 

3  Ormsby  v.  Machin,  20  Ohio  St.  295,  306.    And  that  it  was  error 
to  permit  the  seller  to  prove  that  the  corn  meant  was  a  lot  stored  in 
his  bins :  Ormsby  v.  Machin,  20  Ohio  St.  295,  306. 

4  Hutchinson  r.  Hunter,  7  Pa.  St.  140, 141.    The  property  cannot 
pass  until  there  be  a  specific  identification,  in  some  way,  of  the  par- 
ticular goods  which  the  party  bargains  for :  See  Golder  ?'.  Ogden,  15 
Pa.  St.  5J8,  5J3  ;   Scudder  v.  Worster.  11  Cush.  573  ;   Langdell's  Cases 
on  Sales,  783,  786,  787. 

5  Hutchinson  v.  Hunter,  7  Pa.  St.  140, 145.    And  see  Scudder  v. 
Worster,  11  Cush.  573  ;  Langdell's  Cases  on  Sales,  783,  786  ;  Crofoottf. 
Bennett,  2  Cornst.  258 ;   Langdell's  Cases  on  Sales,  772,  773 ;  2  Kent 
Com.  496  ;  Warren  v.  Buckminster,  24  N.  H.  336,  342  ;  Brewer  v.  Sal- 
bury,  9  Barb.  511,  514. 

6  2    Schouler  on  Personal  Property,  §  256.    If  goods  are  sold  by 
number,  weight,  or  measure,  the  sale  is  prima  facie,  not  complete 
until  their  quantity  is  ascertained,  and  if  they  are  mixed  with  others, 
not  until  they  are  separated  and  designated :  Fuller  v.  Bean,  34 
N.  H.  290,  300. 

7  2   Schouler   on    Personal    Property,    §  256 ;  citing,  Austen   v. 
Craven,  4  Taunt.  644 ;  Langdell's  Cases  on  Sales,  741,  744 ;  Gillett  v. 
Hill,  2  Cromp.  &  M.  530;  Langdell's  Cases  on  Sales,  7-55,  758  ;  Mor- 
rison v.  Dingley,  63  Me.  553  ;  Scudder  v.  Worster,  11  Cush.  573 ;  Lang- 
dell's Cases  on  Sales,  783 ;  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep. 
282.    So  it  is  said  that  on  a  sale  of  merchandise  or  chattels,  if  any- 
thing is  necessary  to  individualize  the  thing  sold,  such  as  weighing, 
measuring,  counting,  or  separating  from  a  bulk,  the  title  does  not 
pass  until  this  is  done,  and  the  purchaser  cannot  maintain  detinue  or 
trover :  Mobile  Sav.  Bank  v.  Fry,  69  Ala.  348,  350 ;  citing,  Magee  ?>. 
Billingsly,  3  Ala.  679  ;  Tucker  v.  Henderson,  63  Ala.  280 ;  sustained, 
Fry  v.  Mobile  Sav.  Bank,  75  Ala.  473,  474. 

8  Crofoot  v.  Bennett,  2  Comst.  258  ;  Langdell's  Cases  on  Sales,  772, 
773. 

9  Golder  v.  Ogden,  15  Pa.  St.  528.    See  Scudder  v.  Worster,  11 
Cush.  573  ;  Langdell's  Cases  on  Sales,  783,  787. 

10  See  citations  in  next  note. 

11  Scudder  ?'.  Worster,  11  Cush.  573 ;  Langdell's  Cases  on  Sales,  783, 
787  ;  quoting,  Blackburn  on  Sales,  122.    Compare  Campbell  on  Sales, 
227  ;  Hubler  v.  Gaston,  9  Or.  66,  70  ;  42  Am.  Rep.  794. 

I  99.  Object  to  be  effected.  —  Identified  goods  with  price 
ascertained.  If  the  goods  sold  are  clearly  identified, 
then  it  is  declared  the  title  will  pass,  although  it  maybe 
necessary  to  number,  weigh,  or  measure  the  goods  in 


§   100  SALES  OF   UNSPECIFIED    CHATTELS.  142 

order  to  ascertain  what  would  be  the  price  of  the  whole 
at  a  price  agreed  upon  between  the  parties.1 

Specification  or  computation  of  value.  The  distinction 
in  all  such  cases  is  said  to  depend  not  so  much  upon 
what  is  done,  as  upon  the  object  to  be  effected  by  it ; 
and  if  that  is  specification,  the  property  is  not  changed, 
but  if  it  is  merely  to  ascertain  the  total  value  at  desig- 
nated rates,  the  change  of  title  is  effected.7 

1  Crofoot  v.  Bennett,  2  N.  Y.  258,  259  ;  Langdell's  Cases  on  Sales, 
772.    Thus  the  sale  is  valid  and  complete  if  a  tlock  of  sheep  is  sold  at 
so  much  per  head,  and  it  is  agreed  that  they  shall  be  counted  after 
the  sale  in  order  to  determine  the  price  of  the  whole  :  Crofoot  v. 
Bennett,  2  N.  Y.  258,  259.    But  if  a  given  number  out  of  the  whole  are 
sold,  no  title  is  acquired  by  the  purchaser  until  they  are  separated 
and  their  identity  thus  ascertained  and  determined :  Crofoot  v.  Ben- 
nett, 2  N.  Y.  253,  259  ;  quoted,  Brewer  v.  Salisbury,  9  Barb.  511,  515  ; 
Hyde  v.  Lathrop,2  Abb.  N.  Y.  App.  436,439,440. 

2  Crofoot  v.  Bennett,  2  N.  Y.  258,  260  ;  Langdell's  Cases  on  Sales, 
772  ;  quoted,  Brewer  v.  Salisbury,  9  Barb.  511.  515.    See  Groat  v.  Gile, 
51  N.  Y.  431,  437. 

g  100.  Identification.  —  Need  and  requisites.  The  au- 
thorities are  said  to  be  nearly  uniform  in  holding  that 
the  legal  title  to  personalty  does  not  pass  by  a  contract 
of  sale  where  the  identity  of  the  property  contracted  to 
be  sold  is  not  ascertained  by  the  contract,  nor  capable 
of  identification  by  parol  evidence.1  And  if  the  prop- 
erty which  is  the  subject  of  sale  is  an  unidentified  part 
of  a  species  which  is  capable  of  separation,  its  identifica- 
tion is  not  such  as  the  law  requires  in  order  to  transfer 
the  legal  title  by  a  sale.2 

Without  separation,  etc.  But  goods  sold  may  be  suf- 
ficiently identified  to  pass  the  title  though  they  are  not 
separated,  as  where  there  are  one  hundred  bales  of 
cotton,  numbered  from  one  to  one  hundred,  and  the 
contract  is  for  the  fifty  odd  numbers,  or  the  fifty  even 
numbers,  or  any  other  specified  fifty  numbers.3  So, 
according  to  some  of  the  cases,  upon  a  sale  of  a  specified 
quantity  of  grain,  its  separation  from  a  mass,  undistin- 
guishable  in  quality  or  value,  in  which  it  is  included, 


143  SALES  OF  UNSPECIFIED   CHATTELS.  g  101 

is  not  necessary  to  pass  the  title,4  when  the  intention  to 
do  so  is  otherwise  clearly  manifested.5 

Pointing  out  or  marking.  Pointing  out  animals  to 
remain  in  the  pasture  with  others,  has  been  held  suf- 
ficient to  transfer  the  title  thereto.6  There  has  been  h  eld , 
however,  to  be  no  sufficient  identification  of  a  portion 
of  iron  not  inspected  by  the  buyer,  where  all  that 
ordered  was  manufactured  and  piled  for  the  buyer  but 
not  marked.7 

1  Browning  v.  Hamilton,  42  Ala.  484,  485.    And  see  First  Nat. 
Bank  v.  Crowley,  24  Mich.  496, 497  ;  distinguishing  Whitcomb  v.  Whit- 
ney, 24  Mich.  486,  492. 

2  Browning  v.  Hamilton,  42  Ala.  484,  485.    But  until  it  is  separated 
from  the  bulk  the  title  remains  with  the  seller,  and  if  the  property  is 
lost,  he  must,  as  a  general  rule,  bear  the  loss  :  Browning  v.  Hamilton, 
486.    When  separated,  however,  the  title  passes  unless  there  is  some 
stipulation  which  prevents  ;  and  if  lost,  though  possession  is  with  the 
seller,  the  loss  falls  on  the  buyer,  unless  it  is  occasioned  by  some 
illegal  act  or  omission  of  the  seller :  Browning  v.  Hamilton,  42  Ala.  486. 

3  Arnold  v.  Delano,  4  Cush.  33,  40 ;  50  Am.  Dec.  754,  758.    And  see 
Bopes  v.  Lane,  9  Allen,  502. 

4  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep.  282. 

5  Kimberly  v.  Patchin,  19  N.  Y.  330  ;  Langdell's  Cases  on  Sales, 
775 ;  Busseli  v.  Carrington.  42  N.  Y.  118,  122 ;  1  Am.  Rep.  498.    But  see 
contra.  Commercial  Nat.  Bank  v.  Gillette,  90  Ind.  268  ;  46  Am.  Rep.  222. 

6  Webster  v.  Anderson,  42  Mich.  554. 

7  First  Nat.  Bank  ?>.  Crowley,  24  Mich.  492,  496.    And  see  Hahn  v. 
Fredericks,  30  Mich.  224,  226.    Measurement  deemed  necessary  to 
complete  identification :  Crapo  v.  Seybold,  35  Mich.  169. 

g  101.  Warehouse  receipt  for  undesignated  goods.  —  At 
common  law.  The  indorsement  of  a  warehouse  receipt, 
and  its  delivery,  operated  to  vest  the  purchaser  with 
the  title  and  possession  at  common  law ; l  but  if  not  for 
a  specific  chattel,  and  the  property  it  represented  was 
a  part  of  a  large  bulk  or  mass  of  articles  that  required 
separation,  no  title  passed  until  the  separation  was  had.2 

Under  statute.  And  the  doctrine  of  the  common  law 
as  to  the  identification  of  the  property  is  held  not  to  be 
changed  by  a  statute  rendering  warehouse  receipts 
negotiable,  and  constituting  them  the  symbolic  repre- 
sentative of  the  property,  etc.,3  but  on  the  contrary  it  is 


$   102  SALES  OF  UNSPECIFIED  CHATTELS.  144 

said  to  be  maintained  by  a  provision  in  such  statute 
that  such  receipt  shall  set  forth  the  quality,  quantity, 
kind,  and  description  of  the  property  which  shall  be 
designated  by  some  mark.4  But  in  Massachusetts  the 
statute  provides  that  the  warehouseman's  receipt  for 
any  portion  of  grain  or  other  property  stored  in  a  pub- 
lic warehouse  in  such  a  manner  that  different  lots  or 
parcels  are  mixed  together  so  that  the  identity  of  the 
same  cannot  be  preserved,  shall  be  deemed  a  valid 
title  to  so  much  thereof  as  is  designated  in  said  receipt, 
without  regard  to  any  separation  or  identification.5 

1  Ferguson  v.  Northern  Bank  of  Kentucky,  14  Bush,  555  ;  29  Am. 
Rep.  418,  422.    And  see  Newcomb  v.  Cabell,  10  Bush,  460,  469,  470. 

2  Ferguson  v.  Northern  Bank  of  Kentucky,  14  Bush,  555  ;  29  Am. 
Rep.  418,  422. 

3  See  Newcomb  v.  Cabell,  10  Bush,  460,  470. 

4  Ferguson  ?>.  Northern  Bank  of  Kentucky,  14  Bush,  555  ;  29  Am. 
Rep.  418,  422.    Nor  is  the  fact  that  hams  are  branded  with  the  usual 
or  known  trade-mark  of  a  firm,  found  on  all  the  hams  in  the  ware- 
house, a  sufficient  mark  or  distinguishing  feature  to  enable  the 
party  to  identify  tbe  property:  Ferguson  v.  Northern  Bank  of  Ken- 
tucky, 14  Bush,  555.    Compare  on  latter  point,  Scudder  v.  Worster,  11 
Cush.  573;  Langdell's  Cases  on  Sales,  783.    And  see  generally  as  to 
need  of  specification,  May  v.  Hoaglan,9  Bush,  171,  173.    (Contract 
construed  as  covenant  to  furnish  eight  barrels  of  whiskey  in  the 
future.)    Insurable  interest  in  unseparated  wheat  held  to  pass  under 
Canadian  statute :  Box  v.  Provincial  Ins.  Co.  18  Grant  COnt.)  280. 

5  Mass.  Pub.  Stats,  ch.  72,  ?  7.    Warehouse  receipts  for  grain  gen- 
erally :  See  Rev.  Stats.  111.  18SO,  ch.  114,  #  120,  et  seq.:  Bailey  v.  Bens- 
ley,  87  111.  556  ;  Broadwell  v.  Howard,  77  111.  305;  Young  r.  Miles,  20 
AVis.  615 ;  S.  C.  23  Wis.  643.    Analysis  of  enactments  relating  to  ware- 
housemen and  their  receipts:   Stims  Am.  Stat.  Law,  pp.  517-519, 
\\  4370-4372. 

§  102.  Delivery  of  unidentified  goods,  —  Does  not  deter- 
mine intention.  Where  goods  are  sold  by  number, 
weight,  or  measure,  the  sale  is  incomplete,  and  the  risk 
continues  with  the  seller,  as  already  stated,1  until  the 
specific  property  is  separated  and  identified.2  And 
though  the  question  of  the  transfer  of  title  and  risk  is 
one  of  intention,3  yet  the  intention  is  to  be  ascertained, 
not  from  the  single  fact  of  delivery,  but  from  all  the 
language  and  conduct  of  the  parties.4 


145  SALES  OF  UNSPECIFIED  CHATTELS.  \   103 

Liability  for  loss.  Hence,  where  under  a  contract  to 
sell  one  hundred  and  fifty  railroad  ties,  two  hundred 
and  fifty-two  were  delivered,  but  it  never  was  ascer- 
tained which  of  these  were  for  the  purchaser  receiving 
them,  and  which  for  another  party,  and  some  of  them 
were  burned,  it  has  been  held  that  the  liability  for  the 
loss  of  those  destroyed  cannot  fall  upon  such  purchaser.5 

1  See  ?  76,  on  GOODS  MINGLED  WITH  OTHERS. 

2  Hutchinson  r.  Grand  Trunk  Railway,  59  N.  H.  487,  489;  citing, 
2  Kent  Com.  4i-B ;  Davis  v.  Hill,  3  N.  H.  382 ;  Messer  v.  Woodman,  22 
N.  H.  172  ;  Warren  v.  Buckminister,  24  N.  H.  337  ;  Fuller  v.  Bean,  34 
N.  H.  2CO;  Ockington  v.  Rickey.  41  N.  H.  275;  Bailey  v.  Smith, 
43  N.  H.  141 ;  rrcscott  ?».  Locke,  51  N.  H.  94, 99  ;  Jenness  v.  Wendell,  51 
N.  H.  63, 69  ;  Smart  v.  Batchelder,  57  N.  H.  140 ;  Macomber?\  Parker, 
13  Pick.  175 ;  Riddle  v.  Varnum,  20  Pick.  280 ;  Foster  v.  Ropes,  111 
Mass.  10. 

3  See  ?  71,  on  INTENTION"  TO  TRANSFER  TITLE  ;  also  under  chap- 
ter on  TRANSFER  OF  TITLE. 

4  Hutchinson  v.  Grand  Trunk  Railway,  59  N.  H.  487,  489  ;  citing, 
Fuller  v.  Bean,  34  N.  H.  303  ;  Foster  v.  Ropes,  111  Mass.  10, 16. 

5  Hutchinson  v.  Grand  Trunk  Railway,  59  N.  H.  487,  489. 

§  103.  Selection  and  separation.  —  For  identification, 
prerequisite  to  transfer  of  title.  The  general  rule  is  that 
where  the  identity  of  the  chattels  contracted  for  is  not 
immediately  ascertainable  from  the  contract,  but  re- 
quires further  specific  acts,  the  property  does  not  pass 
to  the  buyer,  but  remains  in  the  seller  until  identifica- 
tion has  taken  place  through  suitable  acts  of  selection 
and  separation.1 

Applications  of  doctrine.  And  this  doctrine  as  to  un- 
specified goods  has  been  applied  to  a  contract  with  re- 
finers for  a  certain  quantity  of  a  specified  quality  of 
sugars,  so  that  trover  was  held  not  maintainable  because 
any  sugars  of  the  required  quality  would  have  satisfied 
the  contract ; 2  and  to  a  purchase  of  a  number  of  tons  of 
linseed  oil  from  one  who  at  the  time  was  possessed  of 
large  quantities  of  oil,  lying  in  several  different  cisterns, 
in  different  warehouses.3  The  same  rule  has  been  con- 

S-^ered  applicable  to  a  sale  of  ten  tons  of  Riga  flax, 
NEWMARK  SALES.  — 13. 


§    103  SALES  OF   UNSPECIFIED   CHATTELS.  146 

which  required  to  be  separated,  by  weight,  from  a  larger 
mass  of  eighteen  tons,  while  it  might  have  been  neces- 
sary to  break  open  some  of  the  mats  in  which  the  article 
is  usually  imported  in  order  to  make  up  the  stipulated 
quantity  if  the  weight  fell  short.4  So  there  can  be  no 
recovery  where  replevin  is  brought  for  a  certain  num- 
ber of  barrels  of  pork,  bargained  and  sold,  and  still  re- 
maining in  the  vendor's  cellar,  and  parcel  of  a  larger 
quantity  of  similar  brand.5 

Further  illustrations.  And  the  general  principle  has 
been  deemed  applicable  where  a  bargain  is  for  the  whole 
of  a  lot,  with  a  reservation  to  be  made  by  the  seller ; 6 
or  for  so  many  bushels  out  of  a  larger  mass  kept  in 
store,7  or  for  ungathered  vegetables  or  fruit ; 8  or  for  two 
thousand  telegraph  poles,  which  must  be  selected  from 
a  lot  containing  some  twenty-one  hundred  ; 9  or  for  ores 
to  be  hereafter  delivered  from  a  mine  or  a  heap  ; 10  or 
for  lumber  to  be  cut  and  sawed  or  piled.11 

Animals  not  selected  from  flock.  So  where  there  was 
a  bargain  for  fifteen  of  the  best  sheep  of  a  flock,  but  they 
were  not  selected,  it  was  held  that  the  sale  was  incom- 
plete, and  the  property  did  not  pass  until  the  sheep  were 
selected  and  designated  by  marking  or  otherwise,  or 
separated  from  the  flock.12 

Possession  taken  for  pui~pose  of  separation.  But  in  the 
case  of  a  sale  of  part  of  an  entire  mass  of  goods,  such  as 
coal,  brick,  flour,  and  grain,  if  the  purchaser  is  allowed 
to  take  possession  of  the  whole  for  the  purpose  of 
enabling  him  to  separate  the  part  sold,  the  title  to 
the  part  passes  to  the  purchaser,  and  he  may  retain 
that  whole  until  he  has  had  a  sufficient  time  and 
opportunity  to  separate  and  take  the  part  belonging 
to  him.13 

1  2  Schouler  on  Personal  Property,  \  257,  stating  succeeding 
illustrations  in  paragraph.  If  a,  party  agrees  to  deliver  a  certain 
quantity  of  oil,  as  ten  out  of  eighteen  tons,  no  one  can  say  which  part 


147  SALES  OF  UNSPECIFIED   CHATTELS.  $   104 

of  the  whole  quantity  such  party  has  agreed  to  deliver  until  a  selec- 
tion is  made,  for  there  is  no  individuality  until  it  is  divided  :  Gillett 
7\  Hill,  2  Cromp.  &  M.  5CO;  Langdell's  Cases  on  Sales,  755, 758.  See 
Ferguson  v.  Northern  Bank,  14  Bush,  555  ;  29  Am.  Rep.  418,  423. 

2  Austen  v.  Craven,  4  Taunt.  644  ;  Langdell's  Cases  on  Sales,  741, 
744;  noted,  Kimbcrly  v.  Po-tchin,  19  N.  Y.  3.JO;  Langdell's  Cases  on 
Sales,  775, 780  ;  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  2!)  Am.  Rep.  282,  284 ; 
citing,  also,  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942. 

3  White  v.  Wilks,  5  Taunt.  176  ;  Langdell's  Cases  on  Sales,  744, 745. 
But  compare  contra,  Whitehouse  v.  Frost,  12  East,  614  ;  Langdell's 
Cases  on  Sales,  7o4,  737.    And  see  Wallace  v.  Breeds,  13  East,  522 ; 
Larsgdell's  Cases  on  Sales,  739, 741 ;  Foot  v.  Marsh,  51  N.  Y.  28S  ;  Halde- 
man  v.  Duncan,  51  Pa.  St.  63;  Kimberly  v.  Patchin,  19  N.  Y.  330; 
Langdell's  Cases  on  Sales,  775, 780. 

4  Bush  v.  Davis,  2  Maule  <fe  S.  397  ;  Langdell's  Cases  on  Sales,  747, 
749.    So  of  hemp  to  be  weighed  olf  and  separated  :  Shepley  v.  Davis, 
5  Taunt.  617  ;  Langdell's  Cases  on  Sales,  752,  755. 

5  Scudder  v.  Worster,  11  Cush.  573  ;  Langdell's  Cases  on  Sales,  783. 

6  Block  v.  Maas,  65  Ala.  211. 

7  Waldo  v.  Belcher,  11  Ired.  609. 

8  Bailey  v.  Long,  24  Kan.  90. 

9  Bailey  v.  Smith,  43  N.  H.  141. 

10  Bandolph  Iron  Co.  v.  Elliott,  34  N.  J.  L.  184  ;  Beeder  v.  Machem 
57  Md.  56.    And  see  Hutchinson  v.  Hunter,  7  Pa.  St.  140;  Golder  v. 
Ogden,  15  Pa.  St.  528;  Warren  v.  Buckminster,  21  N.  II.  3-^6  ;  Brown- 
ing v.  Hamilton,  42  Ala.  484 ;  Ormsbee  v.  Machin,  22  Ohio  St.  295  ; 
Ferguson  v.  Louisville  Bank,  14  Bush,  555  ;  29  Am.  Rep.  418. 

11  Galloway  v.  Meek,  54  Wis.  604;  Pflstner  v.  Bird,  43  Mich.  14; 
Indianapolis  R.  v.  Maguire,  62  Ind.  140  ;  Dougherty  v.  Haggerty,  1)6 
Pa.  St.  515.    See  2Schoulcr  oa  Personal  Property,  §  257,  stating  illustra- 
tions as  given  in  foregoing  paragraph. 

12  Warren  v.  Buckminster,  24  N.  H.  336,  343.    Compare  in  regard 
to  sales  of  animals :  Groat  v.  Gile,  51  N.  Y.  431,  4<J7  ;  Bertelson  n. 
Bowers,  81  Ind.  512,  513  ;  McLaughlin  v.  Pial  ti,  27  Cal.  451,  4(53  ;  South- 
well v.  Beazley,  5  Or.  143, 145. 

13  Lamprey  v.  Sargent,  58  N.  H.  241, 242  ;  citing,  Story  on  Sales,  314» 
n.  3 ;  Weld  v.  Cutter,  2  Gray,  195 ;  Damon  v.  Osborne,  1  Pick.  476. 

\  104.  When  trover  not  maintainable.  —  Thiny  to  be 
done  by  vendor.  It  has  been  declared  that  the  cases 
where  trover  is  not  the  proper  form  of  action  may  be 
divided  into  two  classes,  one  being  those  in  which  there 
has  been  a  sale  of  goods,  and  something  remains  to  be 
done  by  the  vendor,  where  until  that  is  done  the  prop- 
erty does  not  pass  to  the  vendee  so  as  to  entitle  him  to 
maintain  trover.1 

Vendor's  power  of  selection.  The  other  class  of  cases 
is  where  there  is  a  bargain  for  a  certain  quantity  ex  a 


§§    105-106      SALES   OF   UNSPECIFIED    CHATTELS.  148 

greater  quantity,2  and  there  is  a  power  of  selection  in 
the  vendor  to  deliver  which  he  thinks  fit ;  and  then  the 
right  to  them  does  not  pass  until  the  vendor  has  made 
his  selection,  and  trover  is  not  maintainable  before  that 
is  done.3 

1  Gillett  v.  Hill,  2  Cromp.  <fe  M.  530 ;  Langdell's  Cases  on  Sales,  7">, 

758. 

2  See  "Wallace  v.  Breeds,  13  East.  522 ;  Langdell's  Cases  on  Sales, 
73'J  ;  Hurff  v.  Hires,  40  N.  J.  L.  531 ;  29  Am.  Hop.  232,  23.) ;  Ferguson  r. 
Northern  Bank  of  Kentucky,  14  Bush,  555 ;  2 J  Ara.  Itep.  418,  423. 

3  Gillett  v.  Hill,  2  Cromp.  &  M.  530  ;  Langdell's  Cases  on  Sales,  755, 
758.    Point  raised  but  overruled  that  trover  would  not  lie  for  the  con- 
version of  1969  Spanish  dollars,  because  not  distinguished  or  sepa- 
rated from  remaining  contents  of  a  parcel  of  $4918,  transmitted  to  a 
consignee  for  the  use  of  plaintiff:  Jackson  v.  Anderson,  4  Taunt.  24  ; 
as  stated,  Scudder  v.  Worster,  11  Cush.  573 ;  Langdell's  Cases  on  Sales, 
783, 785. 

\  lOo.  Quasi  cotenancy.  —  Apparent  exception  to  gen- 
eral rule.  There  is  an  apparent  exception  to  the  gen- 
eral rule  if  an  undivided  part  of  a  specified  bulk  be  the 
subject  of  the  sale.1 

JVb  separation  necessary.  For  in  that  case  the  buyer 
may  become  quasi  tenant  in  common  with  the  seller  of 
the  entire  bulk,2  if  such  be  the  intention  of  the  parties,3 
and  of  course  no  separation  is  necessary  to  vest  the 
title  in  the  buyer.4 

1  Langdell's  Cases  o"  Sales,  1027. 

2  See  Kimberly  v.  1  atchin,  19  N.  Y.  330;  Langdell's  Cases  on 
Sales,  775,  78J. 

3  Intention  and  indications  thereof :  %  107. 

4  Kimberly  v.  Pa:   am.  19  N.  Y.  330  ;  Langdell's  Cases  on  Sales, 
775 ;  Gushing  v.  Breed,  14  Allen,  376  ;  Langdell's  Cases  on  Sales,  788, 
3028.    And  see  Chapman  v.  Shepard,  39  Conn.  413  ;  Hoyt  v.  Hartford 
Fire  Ins.  Co.  26  Hun,  416,418.    But  compare  Ferguson  v.  Northern 
Bank,  14  Bush,  55o  ;  29  Ara.  Hep.  418,  424.    Deposits  in  warehouses  : 
See  Keeler  v.  Goodwin,  111  Mass.  490, 491 ;  Dale  v.  Olmsted,  36  111.  150, 
154 ;  41  111.  344. 

\  106.  Estoppel  of  custodian. —  Warehouseman  accept- 
ing order  for  goods.  The  principle  of  estoppel,1  which 
had  been  applied  to  the  case  of  specified  goods,2  has 
been  extended  to  the  case  of  goods  not  specified ; 3  and 
it  has  been  held  that  when  a  warehouseman  has  ac- 


149  SALES  OF   UNSPECIFIED   CHATTELS.  \   107 

cepted  an  order  calling  for  goods  of  a  given  quantity 
and  quality,  he  will  be  estopped  from  saying  that  lie 
has  no  such  goods  in  his  custody  belonging  to  the 
holder  of  the  order,  and  will  be  liable  to  an  action  of 
trover  at  the  suit  of  the  latter  if  he  refuses  to  comply 
with  the  terms  of  the  order.4 

Difficulty  in  supporting  authorities.  But  it  has  been 
suggested  that  there  seems  to  be  difficulty  in  support- 
ing upon  principle  the  cases  which  take  this  position, 
because  there  was  no  assertion  of  facts  in  the  orders, 
and  the  warehousemen  merely  promised  to  comply 
with  the  terms  of  the  orders.5 

1  See  generally  Barnard  v.  Campbell,  55  N.  Y.  456,  463. 

2  See  Stonard  v.  Dunkin,  2  Camp.  344  ;  Langdell's  Cases  on  Sales, 
653,  6~>4 ;  Hawes  v.  Watson,  2  Barn.  &  C.  540;  Langdell's  Cases  on 
Sales,  656,  658  ;  Gillett  v.  Hill,  2  Cronip.  &  M.  530 ;  Langdell's  Cases  on 
Sales,  755,  758,  759. 

3  See  Hurif  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep.  282,  289  ;   and 
citations  in  next  note. 

4  Woodley  v.  Coventry,  2  Hurl.  &  C.  164 ;  Langdell's  Cases  on 
Sales,  760  ;  Knights  v.  Wiffen,  Law  R.  5  Q.  B.  660  ;  Langdell's  Cases 
on  Sales,  766,  771. 


5  See  Langdell's  Cases  on  Sales,  1028.  Estoppel  held  inapplicable 
as  doctrine  to  support  action  of  replevin :  Scudder  v.  Worster,  11 
Cush.  573  ;  Langdell's  Cases  on  Sales,  783,  788. 


§107.  Intention  and  indications  thereof.  —  Intention 
overcoming  presumption  against  transfer  of  title.  It  has 
been  stated  that  there  seems  to  be  good  authority  for 
asserting  that  if  the  parties  so  intend  it,  and  their 
mutual  intention  is  made  sufficiently  manifest,  the 
usual  presumption  against  a  change  of  property  may  be 
overcome,  even  in  the  case  of  goods  not  specific,1  though 
it  is  not  always  clear  whether  the  ground  be  that  the 
property  has  passed,  or  that  the  buyer  has  specially 
contracted  to  assume  the  risks.2 

Selection  and  separation,  or  separation  only.  So  there 
are  cases  which  make  a  distinction  between  the  sale  of 
goods  which  require  both  selection  and  separation,  and 


§  108  SALES  OF  UNSPECIFIED   CHATTELS.  150 

the  sale  of  goods  requiring  separation  only,3  and  con- 
sider that  in  the  former  class  of  cases,  as  an  act  of 
special  discrimination  is  requisite,  the  property  should 
less  readily  be  presumed  to  have  passed  than  in  the 
latter  class.4 

Purchaser  to  make  separation  after  delivery.  And  in 
determining,  upon  the  basis  of  mutual  intention,  whose 
should  be  the  risks,  a  circumstance  not  without  force 
is5  that  the  purchaser  is  invested  with  the  right  and 
duty  to  take  the  goods,  separating  for  himself.6 

1  2   Schouler  on    Personal   Property,  $  258,  whence  paragraph 
derived. 

2  See  Watts  v.  Hardy,  13  Fla.  523  ;  Chapman  v.  Shepard,  39  Conn. 
413  ;  Waldron  v.  Chase,  37  Me.  414  ;  distinguished,  Morrison  v.  Ding- 
ley,  63  Me.  553  ;  Carpenter  v.  Graham,  42  Mich.  191. 

3  Compare  Haldeman  v.  Duncan,  51  Pa.  St.  66,  and  Chapman  v. 
Shepard,  3J  Conn.  413 ;  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  282. 


4    2  Schouler  on  Personal  Property,  ?  258.    And  the  con 


5    2   Schouler  on    Personal  Property,  ?  258,  whence   paragraph 
derived. 


6  See  Foot  v.  Marsh,  51  N.  Y.  288;  explaining,  Kimberly  v.  Patchin, 
19  X.  Y.  330 ;  LangdelPs  Cases  on  Sales,  775  ;  Waldron  v.  Chase,  37 
Me.  414  ;  Weld  v.  Cutler,  2  Gray,  195;  Lamprey  v.  Sargent,  58  N.  H. 
241  ;  Washburn  Iron  Co.  v.  Bussell,  130  Mass.  543.  But  compare 
Haldeman  v.  Duncan,  51  Pa.  St.  66. 

$  108.  Weighing  or  separation.  —  For  identification,  etc. 
Where  there  is  an  immediate  sale  of  a  specific  and 
ascertained  chattel,  and  nothing  remains  to  be  done  by 
the  vendor,  as  between  him  and  the  vendee,  the  prop- 
erty in  the  thing  vests  in  the  vendee.1  But  where  only 
a  part  of  the  bulk  is  sold,  so  that  weighing  or  separa- 
tion is  necessary  to  determine  the  identity  of  the  part 
so  sold,  or,  if  the  whole  of  a  commodity  be  sold,  but 
weighing  or  measuring  be  necessary  to  ascertain  or 
compute  the  price,  unless  the  intention  to  pass  the 
property  be  manifest  without  further  act  011  the  part  of 


151  SALES  OF  UNSPECIFIED  CHATTELS.  §  108 

the  vendor,  the  act  of  weighing  or  measuring  is  essen- 
tial to  vest  the  property  in  the  vendee.2 

Trover  not  maintainable  without.  And  where  a  sale 
was  made  of  a  large  pile  of  slate,  at  a  certain  price  per 
ton,  to  be  paid  for  as  parcels  of  it  should  from  time  to 
time  be  taken  away,  and  the  purchaser  had  paid  the 
price  of  fourteen  tons,  it  was  held  that  he  was  entitled 
to  have  that  quantity  weighed  off  and  separated  for 
him,  but  that  until  such  separation  he  had  110  property 
in  any  specific  fourteen  tons,  and  could  not  maintain 
trover  thereof.3  So  trover  has  been  held  not  main- 
tainable by  a  purchaser  where  a  cargo  of  coal  was  dis- 
charged in  an  undistinguishable  mass  upon  a  wharf, 
and  the  removal  of  the  full  quantity  bought  was  pre- 
vented by  the  interposition  of  another  purchaser  while 
a  portion  of  the  cdal  remained  unweighed  upon  the 
wharf.4  And  where  the  buyer  paid  for  three  mows  of 
hay,  to  be  weighed  out  of  a  certain  mow  when  he 
should  see  fit  to  move  the  same,  and  the  hay  was  taken 
by  a  third  person,  such  buyer  has  been  held  unable, 
for  want  of  property,  to  maintain  trover  against  the 
third  person,  as  there  had  been  no  separation  from  the 
general  mass.5 

1  Tleeder  v.  Machem,  57  Md.  56  ;  citing,  Dixon  v.  Yates,  5  Barn.  <fc 
Adol.  313, 340 ;  Boss's  Leading  Cases,  55  ;  Thompson  v.  B.  B.  Co.  28  Md. 
404  ;  Wait  v.  Baker,  2  Ex.  1 ;  Langdeli's  Cases  on  Sales,  942. 

2  Beeder  v.  Machem,  57  Md.  53  ;  citing,  Hanson  v.  Meyer,  6  East, 
614  ;  Langdeli's  Cases  on  Sales,  639 ;  Bush  v.  Davis,  2  Maule  &  S.  397  ; 
Langdeli's  Cases  on  Sales,  747  ;  Simmons  v.  Swift,  5  Barn.  <fc  C.  857  ; 
Langdeli's  Cases  on  Sales,  659  ;  Shepley  v.  Davis,  5  Taunt.  617  ;  Lang- 
dell's  Cases  on  Sales,  752;  Swanwick  v.  Sothern,  9  Ad.  &  E.  895  ; 
Langdeli's  Cases  on  Sales,  673 ;  Golder  v.  Ogden,  15  Pa.  St.  528  ;  Scud- 
der  v.  Worster,  11  Cush.  573  ;  Langdeli's  Cases  on  Sales,  783. 

3  Young  v.  Austin,  6  Pick.  280,  283  ;   distinguishing,  Damon  v. 
Osborn,  1  Pick.  476  ;  Whitehouse  ?>.  Frost,  12  East,  614  ;  Langdeli's 
Cases  on  Sales,  734  ;  followed,  Merrill  v.  Hunnewell,  13  Pick.  213,  216; 
Stone  v.  Peacock,  35  Me.  385,  388. 

4  Morrison  v.  Dingley,  63  Me.  553,  556.    But  delivery  held  suffi- 
cient, according  to  intention  of  parties,  though  whole  quantity  sold 
not  weighed    and  severed   from   the  bulk  :    Phillips  v.  Ocmulgee 
Mills,  55  Ga.  638,  638.    And  compare  Cumberland  Bone  Co.  v.  Andes 
Ins.  Co.  64  Me.  466, 469. 


§   109  SALES   OF  UNSPECIFIED   CHATTELS.  152 

5  Davis  v.  Hill,  3  N.  H.  382;  14  Am.  Dec.  373,  374;  followed, 
Messer  v.  Woodman,  22  IS".  H.  172, 180  ;  53  Am.  Dec.  241,  247. 

I  109.  Distinguishing  from  mass.  —  Rule  requiring 
separation.  The  long-established  rule  of  the  common 
law,1  as  adopted  in  England  and  in  many  States  in  this 
country,2  is  that  a  sale  of  personal  property  consti- 
tuting a  part  of  a  large  mass  of  like  property  passes  no 
title  to  the  purchaser  until  it  is  separated  from  the 
mass,  or  in  some  other  manner  designated.3  This  doc- 
trine holds  that  specific  individual  goods  must  be 
agreed  on  by  the  parties,4  and  that  it  is  not  enough  that 
they  are  to  be  taken  from  some  specified  larger  stock, 
because  there  still  remains  something  to  be  done  to 
designate  the  portion  sold,  which  portion  must  be 
separated  from  the  mass  before  the  sale  can  be 
completed.5 

Applications  of  doctrine.  And  the  doctrine  has  been 
applied  to  a  sale  of  car-wheels  in  a  common  mass  with 
others,  without  separation  or  designation,  which  after 
the  execution  of  the  contract  were  seized  as  the  prop- 
erty of  the  purchaser.6  So  the  title  does  not  presently 
pass  on  a  purchase  of  a  certain  number  of  bushels  of 
bright,  merchantable,  white  oats,  for  which  payment  is 
then  made,  when  the  seller  agrees  to  deliver  that 
quantity  and  quality  of  oats,  in  good  sacks,  on  board 
the  cars  when  called  for.7 

Wlien  no  designation  necessary.  Where,  however, 
barrels  were  alike  in  size  and  quality,  it  has  been  held 
that  no  designation  was  intended  or  necessary  to  dis- 
tinguish the  particular  lot  sold  from  those  in  store.8 
But  in  order  to  substitute  an  arrangement  between  the 
parties  for  a  manual  delivery  of  a  parcel  of  property 
mixed  with  an  ascertained  and  defined  larger  quantity, 
it  must  be  so  clearly  defined  that  the  purchaser  can 
take  it,  or  maintain  replevin  for  it.9 


153  SALES  OF   UNSPECIFIED   CHATTELS.  §   110 

Mass  of  uniform  character.  And  it  has  been  said 
that  the  cases  in  which  the  title  to  goods  sold,  a  part 
of  a  larger  mass,  has  been  held  to  pass  before  sever- 
ance, are  confined  to  those  in  which  the  mass  itself  is 
ascertained,  and  of  a  uniform  quality  and  value,10 
though  even  in  regard  to  such  cases  there  is  a  conflict 
of  authority.11 

1  According  to  Com.  Nat.  Bank  v.  Gillette,  90  Ind.  268,  269  ;  46 
Am.  Rep.  222. 

2  See  Hutchinson  v.  Hunter,  7  Pa.  St.  140  ;  Haldeman  v.  Duncan, 
51  Pa.  St.  66  ;  Fuller  v.  Bean,  34  N.  H.  290 ;  Ockington  v.  Richey,  41 
N.  H.  275  ;  Ropes  v.  Lane,  9  Allen.  502  ;  Woods  v.  McGee,  7  Ohio,  467  ; 
Morrison  v.   Woodley,  84  111.   182 ;  Bricker  v.  Hughes,  4  Ind.   146 ; 
Courtwright  v.  Leonard,  11  Iowa.  32  ;  Ferguson  ?;.  Northern  Bank,  14 
Bush,  555  ;  29  Am.  Rep.  418;  McLaughlin  v.  Piatti,  27  Gal.  463.    And 
consult  Merchants'  etc.  Bank  v.  Hibbard,  48  Mich.  118 ;  42  Am.  Rep. 
465.     Contra,  see  Kimberly  v.  Patchin,  19  N.  Y.  330  ;  Langdell's  Oases 
on  Sales,  775;  distinguished,  Foot  v.  Marsh,  51  N.  Y.  70;  Higgi'is  v. 
Del.  etc.  R.  R.  51  N.  Y.  288  ;  60  N.  Y.  553.    See,  also,  Pleasants  v. 
Pendleton,  6  Rand.  473  ;  18  Am.  Dec.  726. 

3  Com.  Nat.  Bank  v.  Gillette,  90  Ind.  268,  269  ;  46  Am.  Rep.  222. 
And  see  Hubler  v.  Gaston,  9  Or.  66,  70 ;  42  Am.  Rep.  794. 

4  Murphy  v.  State,  1  Ind.  366. 

5  Murphy  v.  State,  1  Ind.  366  ;  Scott  v.  King,  12  Tnd.  203.    And  see 
Moffatt  v.  Green,  9  Ind.  19b  ;  Lester  v.  Bast,  4.»  In  i.  588,  594  ;  Indian- 
apolis etc.  Ry.  Co.  v.  Maguire,  62  Ind.  140  ;  Bertelson  v.  Bower,  81 
Ind.  512. 

6  Com.  Nat.  Bank  v.  Gillette,  90  Ind.  268 ;  46  Am.  Rep.  222. 

7  Hubler  v.  Gaston,  9  Or.  68.  69 ;  42  Am.  Rep.  794.    For  such  con- 
tract is  for  the  sale  of  a  certain  quantity  of  goods  in  general,  and 
cannot  be  regarded    as  any  more  than  a  contract  to  supply,  on 
demand,  any  other  oats  of  like  quality  or  quantity,  which  construc- 
tion  is  inconsistent  with  an  intention   to  transfer  some  particular 
identified  oats,  and  no  other,  when  the  oats  were  sold  and  the  price 
paid :   Hubler  v.  Gaston,  9  Or.  66,  69. 

8  Carpenter  v.  Graham,  42  Mich.  191, 193. 

9  Foot  v.  Marsh,  51  N.  Y.  288,  293. 

10  See  Morrison  v.  Dingley,  63  Me.  553,  556. 

11  See  \  112,  on  SEPARATION  FROM  UNIFORM  MASS. 

$  110.  No  selection  necessary  where  mass  uniform, — 
Need  of  selection  as  basis  of  requirement  of  separation. 
The  rule  of  law  that  upon  the  sale  of  a  portion  of  a  larger 
bulk,  the  contract  remains  executory  until  the  portion 
sold  is  severed  and  separated  for  the  purchaser  from 
the  mass,  is  sometimes  said  to  prevail  only  wherever 


§  111  SALES  OF   UNSPECIFIED  CHATTELS.  154 

the  nature  of  the  article  is  such  that  a  selection  is  re- 
quired, whether  expressly  provided  for  or  not  by  the 
terms  of  the  contract.1 

JVb  selection  or  separation  of  uniform  mass.  But 
where  the  subject-matter  of  the  sale  is  part  of  an  ascer- 
tained mass  of  uniform  quality  and  value,  no  selection 
is  required,  and  in  this  class  of  cases  it  is  said  to  be 
affirmed  by  many  authorities  that  severance  is  not,  as 
matter  of  law,  necessary  in  order  to  vest  in  the  vendee 
the  legal  title  to  the  part  sold.2 

1  Chapman  v.  Shepard,  39  Conn.  413,  420.    And  if  the  articles  differ 
from  each  other  in  quantity,  or  quality,  or  value,  the  necessity  of  a 
selection  is  clearly  implied  :  Chapman  v.  Shepard,  39  Conn.  41o,  420. 
In  all  such  cases  the  subject-matter  of  the  sale  cannot  he  identified 
until  severance,  which  is  necessary  in  order  that  such  subject-matter 
m  a  v  be  made  certain  and  definite:  Chapman  ?;.  Shepard,  39  Conn. 
413,*420, 421. 

2  Chapman  v.  Shepard,  39  Conn.  413,  421.    And  that  the  title  may 
and  will  pass  if  such  is  the  clear  intention  of  tLe  contracting  parties, 
and  if  there  is  no  other  reason  than  want  of  separation  to  prevent  the 
transfer  of  the  title:   Chapman  r.  Shepard,  3'»  Conn.  413,  421  ;  approv- 
ing, Whitehouse  v.  Frost,  12  East,  614  ;  Langdell's  Cases  on  Sales, 
734  ;  Ross's  Leading  Cases,  6 ;   and  reviewing  principal  American 
cases,  more  fully  cited  in  2  112,  on  SEPARATION  FROM   UNIFORM 
MASS. 

§  111.  Intention  as  criterion.  —  Slight  circumstances 
utilized.  There  is  great  difficulty  in  determining  under 
what  circumstances  the  parties  shall  be  considered  as 
having  evinced  an  intention  that  property  in  the  subject- 
matter  of  sale  should  pass  from  the  vendor  to  the  pur- 
chaser.1 And  where  the  rights  of  unpaid  vendors  are 
concerned,  courts  have  laid  hold  of  slight  circumstances 
to  retain  the  property  in  such  vendors  until  the  pur- 
chase-money be  paid.2 

Supplying  goods  of  particular  description.  Another 
class  of  cases  where  the  title  is  held  not  to  pass,  com- 
prises those  in  which  the  contract  is  to  supply  goods 
of  a  particular  description,  and  would  be  fulfilled  by 
furnishing  any  goods  of  the  stipulated  quality  and 
quantity.3 


155  SALES  OP  UNSPECIFIED   CHATTELS.  §  111 

Advantage  derived  from  selection.  So  there  is  still 
another  class  of  cases  where  the  sale  is  completed  in  all 
respects,  except  that  the  bulk  from  which  the  property 
purchased  is  to  be  separated  is  not  identical  in  kind  or 
uniform  in  value,  and  some  advantage  may  be  derived 
from  the  privilege  of  selection.4 

Presumption  against  intention  to  pass  title.  In  cases 
like  these  it  is  considered  that  the  title  does  riot  pass 
immediately  upon  the  terms  of  the  contract  being  agreed 
upon,  as  the  circumstances  are  such,  and  of  such  weight, 
that  it  is  presumed  that  it  was  not  the  intention  of  the 
parties  that  the  sale  should  be  completed.5 

When  separation  mere  ministerial  act.  But  a  different 
case  is  deemed  to  be  presented  where  nothing  remained 
to  be  ascertained  or  adjusted  to  determine  what  the 
rights  of  the  parties  were  :  where  the  property  had  been 
inspected  and  approved,  and  was  left  with  the  vendor 
for  the  purchaser's  convenience  ;  where  the  mass  from 
which  the  quantity  alone  was  to  be  separated  was  iden- 
tical in  kind,  and  uniform  in  value,  so  that  the  privilege 
of  selection  would  not  confer  any  advantage  upon  either 
party  ;  and  when  nothing  was  left  undone  by  the  parties, 
except  measuring  out  the  quantity  purchased  from  any 
part  of  the  whole  bulk.6 

1  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Hep.  282,  284. 

2  See  case  just  cited,  relying  upon  Hanson  ?;.  Meyer,  6  East,  614  ; 
Langdell's    Oases  on  Sales,  6-".!) ;    Wallace   v.  Breeds,  13  East,  522  ; 
Langdell's  Cases  on  Sales,  73$  ;  Shepley  v.  Davis,  5  Taunt.  616  ;  Lang- 
dell's  Cases  on  Sales,  752  ;  Bush  v.  Davis,  2  Maule  &  S.  397  ;  Langdell's 
Cases  on  Sales,  747  ;  Swanwick  ?>.  Sothern,9  Ad.  &  E.  805  ;  Langdell's 
Cases  on  Sales,  673  ;  Godts  v.  Rose,  17  Com.  B.  229  ;  Langdeli's  Cases 
on  Sales,  970. 

3  See  Austen  v.  Craven,  4  Taunt.  644 ;  Langdell's  Cases  on  Sales, 
741 ;  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942. 

4  See  case  next  cited,  relying  upon  Foot  v.  Marsh,  51  N.  Y.  288. 

5  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep.  282,  285. 

6  Hurff  v.  Hires,  40  N.  J.  L.  5S1 ;  29  Am.  Rep.  282,  285.    As  this  was 
a  mere  ministerial  act,  which  might  be  done  by  either  party,  or  by 
any  stranger,  as  well  as  by  the  parties  themselves :  Hurff  v.  Hires.  40 
JST.J.  L.  581. 


§  112  SALES  OF  UNSPECIFIED   CHATTELS.  156 

§  112,  Separation  from  uniform  mass.  —  Selection  from 
variable  bulk.  It  is  said  to  be  undoubtedly  the  doctrine 
of  the  English  courts1  that  where  there  is  a  bargain  for 
a  certain  quantity  ex  a  greater  quantity,  and  there  is  a 
power  of  selection  in  the  vendor  to  deliver  which  he 
thinks  fit,  then  the  right  to  them  does  not  pass  to  the 
vendee  until  the  vendor  has  made  his  selection.2  This 
doctrine  has  been  said  to  be  founded  on  correct  princi- 
ples, where  the  gross  bulk  is  variable  in  kind  or 
quality,  and  this  selection  from  it  of  that  part  which 
shall  be  delivered  is  of  benefit  to  the  vendor.3 

Extension  in  England  to  uniform  mass.  And  it  has 
been  applied  to  a  sale  of  a  specified  quantity  from  a 
larger  bulk  of  a  uniform  kind  and  value,  where  the 
purchaser  had  seen  the  goods  in  bulk,  and  approved 
of  it.4 

Distinctions  made.  A  distinction  is  made,  however, 
by  the  English  courts  between  actions  directly  between 
the  vendor  and  purchaser,  and  those  brought  against 
parties  who  are  treated  as  mere  custodians  of  the  prop- 
erty, and  against  whom  trover  is  held  maintainable  on 
the  ground  of  estoppel.5  And  it  has  been  declared  that 
while  these  courts  adhere  to  the  rule  that  as  between 
vendor  and  purchaser,  separation  of  the  quantity  sold 
from  a  larger  bulk,  identical  in  kind  and  quality, 
is  unnecessary,  yet  slight  and  unimportant  circum- 
stances 6  will  take  the  transaction  out  of  the  operation 
of  the  rule.7 

Conflict  in  American  decisions.  In  the  American 
courts  the  cases  on  this  subject  are  conflicting.8  But  in 
Virginia,  New  York,  Connecticut,  and  Maine,  the 
courts  have  held  the  broad  doctrine,  without  qualifica- 
tion,9 that  on  a  contract  of  sale  of  a  certain  quantity 
from  a  larger  bulk,  uniform  in  kind  and  quality,  the 
property  will  pass,  though  there  be  no  separation  of 


SALES  OF  UNSPECIFIED   CHATTELS.  $   112 

the  property  sold,  if  such  be  the  intention  of  the  parties,10 
and  that  no  rule  of  law  will  overrule  such  intention  if 
it  be  otherwise  clearly  expressed.11  This  view  has  been 
declared  to  be  an  innovation  upon  the  rule  of  the  common 
law,12  and  the  prior  doctrine  is  said  to  be  uniformly  sus- 
tained by  the  text -writers  and  the  English  cases,  though 
the  weight  of  American  authority  is  perhaps  with  the 
later  view.13  The  older  doctrine  prevails,  however,  in  In- 
diana, where  it  is  held  that  on  sale  of  part  of  a  quantity  of 
goods  of  the  same  kind,  no  title  passes  without  separation 
or  particular  designation  ; 14  and  the  rule  so  adopted  is 
said  to  be  upheld  by  various  American  cases.15 

1  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Kep.  282,  286. 

2  Gillett  v.  Hill,  2  Cromp.  &  M.  530 ;  Langdell's  Cases  on  Sales, 
755,758.    But  compare  statement  in  Ferguson  v.  Northern  Bank  of 
Kentucky.  14  Bush,  555  ;  29  Am.  Hep.  418,  423. 

3  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep.  282,  286. 

4  Aldridge  v.  Johnson,  7 El.  &B.  885;  Langdell's  Casesjon  Sales,  859. 

5  See  Whitehouse  v.  Frost,  12  East,  614 ;   Langdell's  Cases  on 
Sales,  734;  Woodley  v.  Coventry,  2  Hurl.  &  C.  164  ;  Langdell's  Cases 
on  Sales,  760 ;  Gillett  v.  Hill,  2  Cromp.  &  M.  530 ;  Langdell's  Cases  on 
Sales,  755  ;  Knights  v.  WifFen,  Law  R.  5  Q.  B.  660;  Langdell's  Cases 
on  Sales,  766  ;  Farmeloe  v.  JBain,  1  C.  P.  Div.  445 ;  17  Eng.  Hep.  349. 

6  As  in  Aldridge  v.  Johnson,  7  El.  <fe  B.  885  ;  Langdell's  Cases  on 
Sales,  859. 

7  Hurff  v .  Hires,  40  N.  J.  L.  581 ;  29  Am.  Rep.  282,  289,  290. 

8  See  2  Kent  Com.  (12th  ed.)  492, 590  ;  6  Am.  Law  Rev.  450  ;  Fergu- 
son v.  Northern  Bank  of  Kentucky,  14  Bush,  556  ;  29  Am.  Rep.  418, 423. 

9  See  Hurff  v.  Hires,  40  N.  J.  L.  581 ;  50  Am.  Rep.  282,  291. 

10  See  citations  in  next  note 

11  Pleasants  v.  Pendleton,  6  Rand.  473  ;  18  Am.  Dec.  726  ;  Kimberly 
v.  Patchin,  19  N.  Y.  330  ;  Langdell's  Cases  on  Sales,  775  ;  Russell  v. 
Carrington,  42  N.  Y.  118;  1  Am.  Rep.  498;  Chapman  v.  Shepard,  39 
Conn.  413  ;  Waldron  v.  Chase,  37  Me.  414. 


12  Ferguson  v.  Northern  Bank  of  Kentucky,  14  Bush,  555  ;  29  Am. 
ilep.  418,  423.  And  to  be  based  on  cases  which  proceed  upon  the 
theory  that  commercial  interests  demand  a  modification  of  the  rule  : 


Com.  Nat.  Bank  r.  Gillette,  90  Ind.  268  ;  46  Am.  Rep.  222  ;  citing,  Kim- 
berly v.  Patchin,  19  N.  Y.  330  ;  Langdell's  Cases  on  Sales,  775  ;  Pleas- 
ants  v.  Pendleton,  6  Rand.  473  ;  18  Am.  Dec.  726. 

13  Com.  Nat.  Bank  v.  Gillette,  90  Ind.  268 ;  46  Am.  Rep.  222. 

14  Com.  Nat.  Bank  v.  Gillette,  90  Jnd.  2R8  ;  46  Am.  Rep.  222.    Re- 
ferring to  following  cases :  Murphy  v.  State,  1  Ind.  366  ;  Bricker  v. 
Hughes,  4  I  ml.  I4fi  ;  Scott  v.  King,  12  Ind.  203  ;  Lester  ?«.  East,  49  Ind. 
588,  55)4  ;  Indianapolis  etc.  Ry.  Co.  v.  Maguire,  G2  Ind.  140  ;  Bertelson 
v.  Bower,  81  Ind.  512. 

NEWMAEK  SALES. —  14. 


§   113  SALES   OF   UNSPECIFIED   CHATTELS.  158 

15  See  following  decisions  cited  in  support  of  statement:  Hutch- 
inson  v.  Hunter,  7  Pa.  St.  1-40;  Halcleman  v.  Duncan,  51  Pa.  St.  tKi ; 
Fuller  v.  Bean,  :*4  N.  H.  280;  Oc  king  ton  v.  Richer,  41  N.  H.  275; 
Morrison  v.  Woodley,  84  111.  192;  Woods  r.  McGee,  7  Ohio,  4(>7  ; 
McLaughlln  v.  Piatti,  27  Cal.  463;  Courtright  v.  Leonard,  11  Iowa, 
32  ;  Ropes  v.  Lane,  9  Allen,  502  ;  Ferguson  v.  Northern  Bank,  14 
Bush,  555 ;  29  Am.  Rep.  418.  In  Michigan  it  is  declared  the  rule 
seems  not  to  be  definitely  settled,  but  in  a  late  case  assent  was  given 
to  the  argument  that  there  can  be  neither  a  sale  nor  a  pledge  of 
property  without  in  some  manner  specially  distinguishing  it:  Mer- 
chants' etc.  Bank  v.  Hibbard,  48  Mich.  118  :  42  Am.  Rep.  465 ;  as  noted, 
Com.  Nat.  Bank  v.  Gillette,  90  Ind.  263 ;  46  Am.  Rep.  '222. 

$  113.  Illustrative  cases.  —  Holding  separation  neces- 
sary. The  doctrine  that  separation  from  a  larger  mass 
of  the  same  commodity,  or  of  uniform  character,  is 
necessary  to  pass  the  title,  has  been  applied  to  a  sale  of 
a  number  of  barrels  of  pork,  parcel  of  a  larger  quantity 
of  similar  brand  in  the  vendor's  cellar  ; l  to  an  action  of 
assumpsit  to  recover  payment  for  one  hundred  barrels 
of  molasses  sold  as  parcel  of  one  hundred  and  twenty- 
five  barrels  afterwards  destroyed  by  fire,  while  on 
storage,  and  before  separation  or  designation  of  any 
particular  barrels;2  to  a  contract  for  the  sale  of  two 
thousand  pieces  of  wall  paper,  where  the  purchaser 
gave  his  notes  for  the  whole,  but  took  away  only  one 
thousand  pieces,  and  it  was  agreed  that  the  rest  of  the 
pieces  should  remain  until  the  purchaser  called  for 
them  ;3  to  a  sale  of  two  thousand  eight  hundred  bush- 
els of  corn  by  a  vendor  who  had  three  thousand  one 
hundred  bushels  in  his  store,  where  the  portion  sold 
was  never  separated  from  the  rest,  and  after  the  sale 
the  whole  was  destroyed  by  fire  ; 4  and  to  a  sale  of  nine 
arches  of  brick  in  a  kiln  containing  a  larger  number, 
but  not  separated  from  the  residue,  or  specifically 
designated,  where  a  question  of  property  arose  between 
the  vendee  and  an  attaching  creditor  of  the  vendor, 
after  such  vendor  had,  by  other  sales,  reduced  the 
quantity  on  hand  to  less  than  nine  arches.5 

Holding  separation  not  necessary.  The  doctrine  that 
separation  from  a  mass  of  uniform  kind  and  quality  is 


159  SALES   OF   UNSPECIFIED   CHATTELS.  g    113 

not  necessary  to  pass  the  title  has  been  applied  to  a  re- 
sale of  a  speciiied  number  of  uncounted  bags  of  meal, 
out  of  a  mass  of  such  bags,  of  uncertain  numbers,  on 
board  a  vessel,  and  only  in  part  removed  ;6  to  a  salo  of 
one  hundred  and  nineteen  barrels  of  flour  out  of  a  par- 
cel of  one  hundred  and  twenty-three  barrels,  all  of 
similar  kind,  in  the  same  warehouse,  and  all  having 
certain  brands  or  marks,  where  the  flour  was  destroyed 
by  fire  while  on  storage,  and  the  vendee  refused  to  pay 
upon  the  claim  that  the  sale  was  not  perfected  for  want 
of  separation  of  the  barrels  disposed  of ; 7  and  to  a  re- 
plevin suit  against  an  officer  who  had  attached  goods 
as  belonging  to  a  firm,  including  seventy-six  bags  of 
coffee  delivered  by  the  plaintiff  to  the  firm,  and  held 
subject  to  his  order,  where  such  bags  were  in  no  way 
distinguished  by  marks,  or  separated  from  the  other 
coffee  of  the  firm.8  So,  where  the  owner  of  a  large 
quantity  of  corn  in  bulk  sells  a  certain  number  of 
bushels  therefrom,  and  receives  his  pay,  and  the  pur- 
chaser takes  away  a  part,  it  has  been  held  that  the 
property  in  the  part  sold  vests  in  the  purchaser,  al- 
though it  is  not  measured  or  separated  from  the  heap.9 
Destruction  of  flour  before  removal.  And  where  it  was 
the  usage  of  the  business  with  reference  to  which  the 
parties  contracted  that  flour  received  by  rails  and  stored 
was  not  removed  by  the  consignee  to  his  possession, 
but  remained  in  the  custody  of  the  railroad  company 
until  sold,  and  that  the  owners  sold  in  lots  to  various 
purchasers,  and  gave  to  each  purchaser  an  order  upon 
the  company  for  the  amount  purchased,  upon  presen- 
tation whereof  the  agent  would  point  out  the  lot  from 
which  the  order  was  to  be  filled,  and  the  purchaser 
would  remove  and  receipt  for  the  same,  but  nothing 
remained  to  be  done  by  the  seller,  it  has  been  hold  that 
by  such  usage  flour  called  for  by  an  order  out  of  a 


§  113  SALES   OF  UNSPECIFIED   CHATTELS.  160 

larger  lot  of  the  same  brand  and  quality,  some  of  which 
was  entirely  delivered  as  well  as  sold  to  other  purchas- 
ers, was,  after  the  acceptance  of  the  order  by  the  rail- 
road company,  the  property  of  the  purchaser ; 10  and 
that  he  was  liable  for  the  price,  though  part  of  the  flour 
was  destroyed  by  fire  before  being  removed  to  his 
actual  possession.11 

1  Scudder  v.  Worster,  11  Cush.  573 ;  Langdell's  Cases  on  Sales,  783, 
786,  787,  stating  cases  next  noted. 

2  Hutchinson  v.  Hunter,  7  Pa.  St.  140  ;  disapproving  Pleasants  v. 
Pendleton,  6  Rand.  475  ;  18  Ana.  Dec.  726. 

3  Golder  v.  Ogden,  15  Pa.  St.  528. 

4  Waldo  v.  Belcher,  11  Ired.  609. 

5  Merrill  v.  Hunnewell,  13  Pick.  213. 

6  Chapman  v.  Shepard,  39  Conn.  413. 

7  Pleasants  v.  Pendleton,  6  Rand.  473  ;  18  Am.  Dec.  726  ;  explained, 
Woods?'.  McGee,  7  Ohio,  127,  129.    And  see  Hutchinson  v.  Hunter, 7 
Pa.  St.  140, 145  ;  noted  and  quoted,  Chapman  v.  Shepard,  39  Conn.  413, 
422. 

8  Gardner  v.  Dutch,  9  Mass.  427.    See  Scudder  ?'.  Worster,  11  Cush. 
573 ;  Langdell's  Cases  on  Sales,  783,  784,  785,  stating  this  and  preceding 
case. 

9  Waldron  v.  Chase,  37  Me.  414 ;  as  noted,  Chapman  v.  Shepard, 
39  Conn.  413,  423.    Com  inspected  ant'  approved,  and  price  agreed  on 
invt  paid,  hut  grain   left  in  crib-house  and  levied  upon  :  Hurff  v. 
Hires,  40  X.  J.  L.  581 ;  2.4  Am.  Rep.  582. 

10  Newhall  v.  Lang-Ion,  39  Ohio  St.  87,  92  ;  48  Am.  Rep.  426 ;  dis- 
tinguishing, Woods  v.  McGee,  7  Ohio,  467. 

11  Newhall  v.  Langdon,  39  Ohio  St.  87,  92  ;  citing,  Steel  Works  v. 
Dewev,  37  Ohio  fet.  242  ;  Young  v.  Miles,  23  Wis.  Ml ;  Cloud  v.  Morr- 
nian,  18  Ind.  40;  Horr  v.  Barker,  8  Cal.  489;  Gushing  v.  Breed,  14 
Allen,  37G;  Langdell's  Cases  on  Sales,  78->  rKimberly  v.  Patchin.  19 
K.  Y.  3:10  ;  Langdell's  Cases  on  Sales,  775 ;  Waldron  v.  Chase,  37  Me. 
414 ;  Chapman  v.  Shepard,  39  Conn.  413  ;  Whitehouse  v.  Frost.  12  East, 
614  ;  Langdell's  Cases  on  Sales,  734  ;  Hurff  v.  Hires,  17  Am.  Law  Reg. 
17 ;  18  Am.  Law  lleg.  161,  and  notes  :  S.  C.  40 IST.  J.  L.  581 ;  20  Am.  Rep. 


161  SALES  OF  MANUFACTURED  CHATTELS.         \   114 


CHAPTER  X. 

SALES  OF  MANUFACTURED  CHATTELS. 

2  114.  In  general. 

\  115.  Need  of  completion,  etc. 

2  116.  Requisites  to  transfer  of  title. 

2  117.  Need  of  delivery. 

\  118.  Need  of  assent. 

2  119.  Unfinished  chattel. 

2  120.  Ship-building  contracts. 

\  121.  Payment  of  instalments  of  price. 

2  122.  Unattached  materials. 

2  123.  Title  to  chattels  not  finished. 

2  124.  Title  to  unfinished  vessels. 

\  114,  In  general.  —  Presumption  against  immediate 
transfer  of  title.  Where  an  article  is  to  bo  made  to  order, 
the  same  general  presumption  against  an  immediate 
transfer  of  property  holds  as  in  the  case  of  existing 
chattels;1  for  on  the  mere  agreement  to  supply,  no 
specific  thing  can  be  identified  as  the  property  actually 
bargained  for,  but  anything  answering  to  the  description 
might  be  afterwards  furnished  and  appropriated  to  the 
contract.2 

Disposition  of  unsatisfactory  chattel.  Thus  a  carriage- 
maker  ordered  to  build  a  carriage  after  a  certain  pattern, 
might,  if  dissatisfied  with  his  work,  throw  aside  any 
number  of  carriages  begun  upon,  or  might  turn  them 
over  to  meet  his  more  pressing  orders  from  other  quar- 
ters, before  transferring  his  labors  to  that  which  finally 
turns  out  the  specific  property  of  a  particular  contract 
of  sale.3 

Contract  generally  executory  until  chattel  finished  and 
appropriated.  Hence  a  contract  of  sale  for  a  chattel  not 


§   115  SALES   OF  MANUFACTURED   CHATTELS.  162 

at  the  time  in  existence,  but  to  be  made  and  finished  by 
the  seller,  is  executory  only  ; 4  and  as  a  rule,  no  property 
in  the  chattel  vests  in  the  buyer  until  it  is  completely 
finished,  and  in  some  manner  set  aside  and  appro- 
priated 5  to  the  contract.6 

1  See  Halterline  v.  Bice,  62  Barb.  593,  598. 

2  2  Schouler  on  Personal  Property,  \  259.    And  see  Story  on  Sales, 
\\  233,  315 ;  Clarke  v.  Spence,  4  Ad.  &  E.  448 ;  Langdell's  Cases  on 
(Sales,  816,  825. 

3  2  Schouler  on  Personal  Property,  \  259. 

4  See  Story  on  Sales,  \  232. 

5  See  Halterline  v.  Kice,  62  Barb.  593,  600 ;  Williams  v.  Jackman, 
16  Gray,  514  ;  Langdell's  Cases  on  Sales,  906,  908. 

6  2  Schouler  on  Personal  Property,  §  259 ;  citing,  Story  on  Sales, 
§§232,  315;   Blackburn  on  Sales,  122,  128;    Mucklow  v.  Mangles,  1 
Taunt.  318  ;  Langdell's  Cases  on  Sales,  792;  Atkinson  ?;.  Bell,  8  Barn, 
cfe  C.  '-71 ;  Langdell's  Cases  on  Sales,  801 ;  Anglo-Egyptian  Nav.  Co. 
v.  Ronnie,  Law  B.  10  Com.  P.  271  ;  Briggs  r.  Lightboat,  7  Allen,  287; 
Fairfleld  Bridge  Co.  v.  Nye,  60  Me.  372  ;  Shaw  r.  Smith,  48  Conn.  306 ; 
40  Am.  Bep.  170;  Halterline  v.  Bice,  62  Barb.  5'>3  ;  Mclntvre  v.  Kline, 
30  Miss.  361 ;  First  Nat.  Bank  v.  Crowley,  24  Mich.  492  ;  Gammage  v. 
Alexander,  14  Tex.  414  ;  Kider  v.  Kelly,  32  Vt.  261. 

I  115.  Need  of  completion,  etc.  —  Act  remaining  to  be 
performed.  The  rule  that  the  title  to  property  does  not 
pass  while  anything  remains  to  be  done  to  ascertain 
either  the  quantity  or  price,  applies  as  well  to  property 
thereafter  to  be  manufactured  as  to  that  already  in  esse.1 

Chattel  must  be  finished,  etc.  Thus  it  is  the  general 
rule  of  law  that  under  a  contract  for  supplying  labor 
and  materials  and  making  a  chattel,  no  property  passes 
to  the  vendee  till  the  chattel  is  complete  and  delivered, 
or  ready  to  be  delivered.2 

Counter  intent.  And  this  rule  must  prevail  in  all 
cases,  unless  a  contrary  intent  is  expressed,  or  clearly 
implied  from  the  terms  of  the  contract.3 

1  Halterline  v.  Kice,  62  Barb.  593,  598. 

2  Williams  v.  Jackman,  16  Gray,  514  ;  Langdell's  Cases  on  Sales, 
906,  908.    And  see  Briggs  v.  Lightboat,  7  Allen,  287,  2J«  ;  Elliott  v. 
Edwards,  35  N.  J.  L.  265,  268 :  Wright  v.  O'Brien,  5  Daly,  54, 56. 

3  Williams  v.  Jackman,  16  Gray,  514 ;  Langdell's  Cases  on  Sales, 
906,908. 


163  SALES  OF   MANUFACTURED   CHATTELS.         \    116 

§  116.  Requisites  to  transfer  of  title.  —  Completion,  de- 
livery, appropriation,  etc.  In  the  case  of  a  contract  to 
manufacture  goods,  and  to  sell  them,  it  is  said  to  be  a 
general  rule  that  no  property  in  the  material  passes  to 
the  purchaser  until  the  article  has  been  finished  and 
delivered,  or  is  ready  for  delivery,1  and  appropriated  to 
the  benefit  of  the  purchaser,  or  set  apart  for  him,  with 
his  assent,  and  accepted  by  him.'2 

Procuring  full  payment  for  unfinished  set  of  tools. 
Thus  where  one  contracted  for  a  set  of  sewing-machine 
tools  to  be  manufactured,  and  to  pay  the  price  as  the 
work  progressed,  and  the  manufacturer,  representing 
that  the  work  was  substantially  completed,  obtained 
payment  of  the  balance  of  the  purchase  price,  and  then 
made  an  assignment  for  the  benefit  of  creditors,  it  was 
held  that  title  had  not  passed  as  against  creditors,  or 
even  between  the  parties.3 

Rule  concerning  vessels,  etc.,  in  progress  of  completion. 
For  it  has  been  declared  to  be  the  rule,  according  to 
decided  cases  and  known  principles  of  law,  that  in  gen- 
eral under  a  contract  for  the  building  of  a  vessel,  or 
making  any  other  thing  not  existing  at  the  time  of  the 
contract,  no  property  vests  in  the  party,  whom  for  dis- 
tinction one  may  call  the  purchaser,  during  the  pro- 
gress of  the  work,  nor  until  the  vessel  or  other  thing  is 
finished  and  delivered,  or  at  least  ready  for  delivery 
and  approved  by  the  purchaser.4  And  the  builder  or 
maker  is  not  bound  to  deliver  to  the  purchaser  the  iden- 
tical vessel  or  thing  which  is  in  progress,  but  may,  if  he 
please,  dispose  of  that  to  some  other  person,  and  deliver 
to  the  purchaser  another  vessel  or  thing,  provided  it 
answers  to  the  specifications  contained  in  the  contract.5 

1  See  Williams  v.  .Tackman,  Ifi  Gray,  514  ;  Langdell's  Cases  on 
Sales,  906, 908. 

2  Halterlinc  v.  Rice,  62  Barb.  503,  600 ;  citing,  Chitty  on  Contracts* 
378.    Aucl  sue  First  lNTut.  Bunk  v.  Crowley,  24  Mich,  4J2  ;  Mucklow  v. 


§117          SALES  OF  MANUFACTURED   CHATTELS.  164 

Mangles,  1  Taunt.  318,  319  ;  Langdell's  Cases  on  Sales,  792  ;  Wilkins  v. 
Bromhead,6  Man.  &  G.  963 ;  Langdell's  Cases  on  Sales,  838;  Moody 
v.  Brown,  34  Me.  107,  109;  Langdell's  Cases  on  Sales,  909;  Fairfield 
Bridge  Co.  v.  Nye,  60  Md.  372;  Hider  v.  Kelly,  32  Vt.  268;  Cooke  r. 
Millard,  65  N.  Y.  352  ;  22  Am.  Hep.  619,  628,  629 ;  Andrews  v.  Durant,  11 
N.  Y.  35,  40  ;  Langdell's  Cases  on  Sales,  894.  Compare  Mclntyre  v. 
Kline,  30  Miss.  361,  364. 

3  Shaw  v.  Smith,  48  Conn.  306  ;  40  Am.  Rep.  170. 

4  Clarke  v.  Spence,  4  Ad.  &  E.  448.    And  that  this  is  the  case  even 
•where  the  contract  contains  a  specification  of  the  dimension  and 
other  particulars  of  the  vessel  or  thing,  and  fixes  the  precise  mode 
and  time  of  payment  by  months  and  days:  Clarke  v.  Spence,  4  Ad. 
<fc  E.  448. 

5  Clarke  v.  Spence,  4  Ad.  &  E.  448 ;  Langdell's  Cases  on  Sales,  816, 
825. 

\  117 .  Need  of  delivery.  —  In  England.  Where  a  chat- 
tel is  manufactured  to  order,  it  has  been  considered  in 
England  that  no  property  vests  till  the  chattel  is  fin- 
ished and  delivered.1  Thus,  trover  has  been  held  not 
to  lie,  because  the  goods  might  still  have  been  sold  to 
another  person,  where  a  barge,  after  the  buyer's  name 
was  painted  on  the  stern,  was  finished  by  the  builder, 
who  had  been  paid  the  whole  price  in  portions,  as  the 
work  proceeded,  and  who  had  previously  committed 
an  act  of  bankruptcy,  but  such  barge  was  seized  on  exe- 
cution by  the  creditors  of  the  builder  before  he  had  de- 
livered it  up  to  the  buyer;2  and  where  goods  ordered  from 
a  manufacturer  were  completed  and  loaded  on  barges  to 
be  forwarded  to  the  purchaser,  who  had  accepted  a  bill  of 
exchange  on  account  of  the  price,  drawn  by  the  manufac- 
turer after  he  had  committed  an  act  of  bankruptcy.3 

In  this  country.  So  in  this  country  it  has  been  laid 
down  that  where  a  party  orders  a  thing  to  be  made, 
such  as  a  vessel  or  any  other  articles,  it  does  not  be- 
come his  property  until  it  is  delivered  into  his  posses- 
sion, even  though  he  may  have  paid  for  it  in  advance, 
or  furnished  a  large  portion  of  the  materials  of  which 
it  is  constructed.* 

Rule  otherwise  where  different  special  stipulations. 
But  while  this  is  the  rule,  it  has  been  regarded  as 


165  SALES   OF   MANUFACTURED   CHATTELS.         §    117 

equally  well  settled  that  it  is  competent  for  the  parties 
to  agree  that  the  thing  to  be  produced  from  the  begin- 
ning, or  at  any  stage  of  its  production,  is  to  be  the  prop- 
erty of  the  person  who  ordered  it,5  and  that  the  title 
passes  before  delivery  when  a  mutual  assent  to  that 
effect  is  shown  by  unequivocal  acts  or  declarations.6 

Everything  done  and  notice  given.  And  it  has  been 
held  that  if  the  vendor  has  done  everything  he  was  to 
do  under  a  contract  for  the  manufacture  and  sale  of  a 
specific  chattel,  which  was  to  be  manufactured  in  ac- 
cordance with  the  terms  of  the  agreement,  and  has 
given  notice  thereof  to  the  purchaser,  the  general  prop- 
erty in  the  chattel  vests  in  the  purchaser,  and  the 
chattel  is  at  his  risk.7 

Intention  governs.  So,  even  in  England  it  has  been 
laid  down  that  in  case  of  chattels  manufactured  to 
order,  as  in  the  case  of  other  chattels  not  specific,  it  de- 
pends upon  the  intention  of  the  parties  whether  the 
property  passes  to  the  buyer  ;8  and  the  property  in  un- 
finished bricks  has  been  held  to  pass  where  the  state- 
ment of  the  seller's  foreman  as  to  his  readiness  to 
deliver  them  made  to  the  buyer's  agent,  amounted  to 
an  appropriation  of  the  bricks.9 

1  See  Mucklow  v.  Mangles,  1  Taunt.  318 ;  Langdell's  Cases  on 
Sales,  792,  7J4.    Compare  Wright  v.  O'Brien,  5  Daly,  54,  50. 

2  Mucklow  v.  Mangles,  1  Taunt.  318 ;  Langdell's  Cases  on  Sales, 
71)2,  793. 

3  Bishop  v.  Crawshay,  3  Barn.  &  C.  415,  418,  419. 

4  See  Wright  v.  O'Brien,  5  Daly,  45,  46.    But  during  its  production 
It  is,  and  after  it  is  finished  it  continues  to  be,  the  property  of  the 
person  who  produced  it,  and  may  be  levied  upon  and  sold  under  an 
execution  against  him  :  Wright  v.  O'Brien,  5  Daly,  45,  46.    And  see 
citations  in  note  before  last. 

5  See  citations  in  next  note. 

6  See  Wright  v.  O'Brien,  5  Daly,  54,  56.    And  consult  Andrews  v. 
Durant,  11   N.  Y.  35,  42 ;    Langdell's  Cases  on  Sales,  894  ;    Woods  ??. 
Kussoll,  5  Barn.  <fc  Aid.  942  ;  Langdell's  Cases  on  Sales,  794.    Com- 
pare Brown  v.  Bateman,  Law  B.  2  Com.  P.  272. 

7  Goddard  v.  Binney,  115  Mass.  450 ;  15  Am.  Rep.  112,  118.    And 
compare  Biggins  v.  Murray,  4  Hun,  565,  5(V7  ;  Pratt  v.  Maynard,  116 
Mass.  388,  301 ;  Shawhau  v.  Van  Nest,  25  Ohio  St.  490.  494 ;  Thoub- 


§    118         SALES   OF   MANUFACTURED   CHATTELS.  166 

boron  v.  Lewis,  43  Mich.  635,  637  ;  Mount  Hope  Iron  Co.  r.  Buffington, 
103  Mass.  62,  64  ;  Phelps  r.  Willard,  16  Pick.  29,  32 ;  Bank  of  Upper 
Canada  v.  Killaly,  21  Up.  Can.  Q.  B.  9. 

8  Young  v.  Matthews,  Law  K.  2  Com.  P.  127, 129  ;  Langdell's  Cases 
on  Sales,  875. 

9  Young  v.  Matthews,  Law  B.  2  Com.  P.  127, 129  ;  Langdell's  Cases 
on  Sales,  875. 

\  118.  Need  of  assent.  —  Statement  and  illustration.  It 
has  been  laid  down  as  the  result  of  British  cases  that  in 
order  to  the  passing  of  property,  either  manufactured  to 
order  or  bought  from  a  larger  quantity  of  the  same  class 
of  goods,  there  must,  as  a  general  rule,  not  only  be  an 
appropriation  on  the  part  of  the  seller,1  but  an  assent  to 
the  appropriation  on  the  part  of  the  purchaser.2  Thus, 
under  a  contract  to  manufacture  glass  chimneys,  some 
of  special  shapes  and  others  of  ordinary  shapes,  where 
the  goods  were  stored  by  the  manufacturing  company 
with  a  warehouseman  as  their  goods,  though  contrary 
representations  were  made  to  the  buyers,  it  was  held 
that  there  was  not  a  sufficient  delivery  to  pass  the  prop- 
erty in  the  goods  to  the  buyers,  as  there  would  have 
been  if  the  manufacturers  had  delivered  the  goods  to 
the  warehouseman  as  the  goods  of  the  buyers,  and  the 
warehouseman  had  so  accepted  them.3 

Maintenance  of  action  for  goods  bargained  and  sold. 
And  even  where  the  spinning  machines  ordered  by  the 
purchaser  had  been  made  and  altered  and  packed  in 
boxes  under  the  superintendence  of  the  patentee  acting 
in  his  behalf,  and  the  vendor  on  whose  premises  they 
remained  ready  to  be  forwarded  wrote  to  the  purchaser 
inquiring  by  what  conveyance  they  were  to  be  sent,  but 
became  bankrupt  before  receiving  an  answer,  it  was 
held  that  an  action  for  goods  bargained  and  sold  instead 
of  for  not  accepting  the  goods  was  not  maintainable  by 
the  assignees  of  the  bankrupt  against  the  purchaser, 
who  had  refused  to  take  the  goods,4  for  the  property 
had  not  passed,  as  required  for  such  action,5  since  there 


167  SALES  OF   MANUFACTURED   CHATTELS.         \    118 

was  no  such  assent  to  the  appropriation  by  the  vendor 
as  completed  the  same,6  and  although  the  vendor  in- 
tended them  for  the  purchaser,  yet  he  might  afterwards 
have  delivered  the  goods  to  a  third  person.7  Yet  there 
has  been  held  to  be  a  sufficient  assent  to  the  appropria- 
tion of  the  article  to  sustain  a  count  for  goods  bargained 
and  sold  where  a  party  ordering  a  machine  deposited 
a  portion  of  the  price,  and  when  he  saw  it  completed, 
made  another  payment  on  account,  but  though  admit- 
ting in  answer  to  a  demand  for  the  balance  of  the  ac- 
count that  the  machine  was  made  according  to  his  order, 
requested  that  it  be  sent  home  before  it  was  paid  for,  and 
subsequently  claimed  that  the  price  was  exorbitant,  but 
said  he  would  endeavor  to  arrange  it  if  given  time.8 

Sufficiency  of  appropriation.  The  appropriation  of  a 
greenhouse  has  likewise  been  regarded  as  complete,  so 
as  to  transfer  the  property  to  the  buyer,  where  the  latter 
on  being  notified  that  the  article  was  ready  for  delivery 
remitted  the  price  as  requested ,  and  asked  the  maker  to 
keep  the  greenhouse  until  the  buyer  should  send  for  it.9 

Tender,  etc.,  of  manufactured  article.  But  it  is  held 
that  the  mere  tender  of  an  article  manufactured  pur- 
suant to  the  order  of  a  customer  does  not  transfer  the 
title  to  the  latter,  nor  does  the  leaving  the  article  with 
the  customer  against  his  will  have  this  effect,10  since 
to  pass  the  title11  there  must  generally  be  an  acceptance 
express  or  implied.12 

Payment  by  instalments,  and  superintendence  of  ivork. 
An  exception  to  the  general  rule  is  said  to  exist,  how- 
ever, when  the  customer  employs  a  superintendent,  and 
pays  for  the  property  by  instalments  as  the  work 
progresses.13 

1  See  Stock  v.  Inglls,  Law  R.  9  Q.  B.  D.  708,  717. 

2  Gowans  v.  Consolidated  Bank  of  Canada,  43  Up.  Can.  Q.  B.  318, 
325. 


§    119         SALES   OF  MANUFACTURED   CHATTELS.  168 

3  Gowans  v.  Consolidated  Bank  of  Canada,  43  Up.  Can.  Q.  B.  318, 
319, 326 ;  citing  and  reviewing  many  English  and  some  Canadian  cases. 

4  Atkinson  v.  Bell,  8  Barn.  &  C.  277 ;  Langdell's  Cases  on  Sales, 
801,  803, 805.    But  compare  Rohde  v.  Thwaites,  6  Barn.  &  C.  383  ;  Lang- 
dell's  Cases  on  Sales,  138 ;  Fragano  v.  Long,  4  Barn.  <fe  C.  219 ;  Lang- 
dell's  Cases  on  Sales,  798.    See  note  to  Shawhan  v.  Van  Nest,  25  Ohio 
St.  4'JO  ;  15  Am.  Law  Reg.  N.  S.  153, 160. 

5  See  Bailey  v.  Smith,  43  N.  H.  141, 143  ;  Gordon  v.  Norris,  49  N.  H. 
3T6,  382.    Compare  Spicers  v.  Harvey,  9  R.  I.  582,  584. 

6  Assent  to  appropriation  :  See  section  of  next  chapter  on  that 
subject. 

7  Atkinson  v.  Bell,  8  Barn.  &  C.  277  ;  Langdell's  Cases  on  Sales, 
801,803,805.    And  see  Gooderham  v.  Dash,  9  Up.  Can.  C.  P.  413,  41fi, 
417;  Robertson  v.  Strickland,  28  Up.  Can.  Q.  B.  221,  229.    Compare 
O'Neil  v.  Mcllmoyle,  34  Up.  Can.  Q.  B.  236,  245. 

8  Elliott  v.  Pybus,  10  Bing.  512  ;  Langdell's  Cases  on  Sales,  806. 
See  Shawhan  v.  Van  Nest,  25  Ohio  St.  490 ;  15  Am.  Law  Reg.  N.  S.  153, 
162. 

9  Wilkins  v.  Bromhead,  6  Man.  &  G.  963;  Langdell's  Cases  on 
Sales,  831. 

10  Moody  v.  Brown,  34  Me.  107, 109 ;  Langdell's  Cases  on  Sales,  909. 

11  Transfer  of  title  :  See  subsequent  chapter  on  that  subject. 

12  Moody  v.  Brown,  34  Me.  107, 109  ;  Langdell's  Cases  on  Sales,  909. 
And  see  Atkinson  v.  Bell, 8  Barn.  &  C.  277  ;  Langdell's  Cases  on  Sales, 
801.    Compare    Fairfield    Bridge   Co.  v.  N  ye,  60  Md.  372 ;  Tripp  v. 
Armitage,  4  Mees.  &  W.  687 ;  Langdell's  Cases  on  Sales,  829.    But  see 
Brewert  v.  Smith,  15  Wend.  493  ;  Langdell's  Cases  on  Sales,  889. 

13  Moody  v.  Brown,  34  Me.  107, 110  ;  Langdell's  Cases  on  Sales,  809. 
And  see  Sandford  v.  The  Wiggins  Ferry  Co.  27Ind.  522;  Woods  v. 
Russell,  9  Barn.  <fc  Aid.  542  ;  Langdell's  Cases  on  Sales,  794  ;  Clarke  v. 
Spence,  4  Ad.  &  E.  448 ;  Langdell's  Cases  on  Sales,  816.    Compare  In  re 
Lindsay,  Law  R.  10  Ch.  App.  405  ;  12  Eng.  Rep.  782.    But  see  Green  v. 
Hall,  1  Houst.  506,  513  ;  Elliott  v.  Edwards,  35  N.  J.  L.  265,  268  ;  Wil- 
liams v.  Jackman,  16  Gray,  514, 517, 518 ;  Langdell's  Cases  on  Sales,  906  ; 
Andrews  v.  Durant,  11  N.  Y.  35,  40  ;  Langdell's  Cases  on  Sales,  844. 

§  119.  Unfinished  chattel,  —  Showing  express  intention 
to  pass  title.  In  the  class  of  cases  where  the  subject  of 
the  contract  is  an  unfinished  or  incomplete  thing,  being 
a  chattel  not  in  a  deliverable  state,  as  a  partly  built  car- 
riage or  ship,  it  has  been  held  by  the  courts,  irrespect- 
ive of  the  cases  where  no  specific  chattel  has  been 
appropriated,1  that  it  is  necessary  to  show  an  express 
intention  in  the  parties  2  that  the  property  should  pass 
in  a  specific  chattel  unfinished  at  the  time  of  the  con- 
tract of  sale,  in  order  to  take  the  case  out  of  the  general 
rule 3  that  governs  where  goods  are  not  in  a  deliverable 
state.4 


169  SALES   OF   MANUFACTURED   CHATTELS.  g   119 

Transfer  of  thing  in  its  existing  state.  And  on  a  sale 
of  an  unfinished  chattel  as  such,  or  of  a  chattel  progres- 
sing toward  completion,5  the  true  question  has  been  de- 
clared to  be  whether  the  parties,  by  mutual  acts  and 
conduct,  had  already  concluded  a  transfer  of  the  prop- 
erty to  the  thing  in  its  existing  state,  or  at  least  of  the  risks 
which  usually  attend  ownership.6  Thus,  a  party  may 
agree  to  purchase  a  ship  as  she  then  stands,  thus  making 
a  present  bargain  and  sale  of  the  existing  materials, 
instead  of  making  a  contract  to  purchase  the  ship  when 
finished,  in  which  case  no  property  previously  passes.7 

Delivery,  bill  of  sale,  etc.  And  while  ordinarily  a 
contract  for  the  sale  of  a  chattel  not  yet  finished  must 
be  regarded  as  executory,8  yet  if  the  parties  have  mani- 
fested their  intent  that  the  transfer  of  property  shall 
take  place  in  the  finished  product  at  once,  that  intention 
will  take  effect.9  Not  only  may  delivery  be  in  such 
case  a  significant  fact  in  proof  of  a  completed  sale  and 
transfer  of  title,  but  the  same  effect  would  be  given  to 
an  absolute  bill  of  sale,10  which  would  be  more  appro- 
priate when  the  seller  had  yet  to  finish  the  thing  ; 1!  for 
one  may  make  an  outright  purchase  of  an  unfinished 
chattel,  on  the  understanding  that  the  seller  should 
finish  it  for  the  buyer,  and  retain  possession  longer  for 
that  purpose.12 

1  See  Mucklow  r.  Mangles,  1  Taunt.  318 ;  Lnngdell's  Cases  on 
Sales,  702  ;  Bishop  v.  Crawshay,  8  Barn.  &  C'.  415  ;  Atkinson  r.  Bell,  8 
Barn.  &  C.  277  ;  Langdell's  Cases  on  Sales,  801. 

2  See  Young  v.  Matthews,  Law  B.  2  Com.  P.  127, 129;  Langdell's 
Case's  on  Sales,  875. 

3  See  g  86,  on  PUTTIXG  INTO  DKLIVEKABLK  STATK. 

4  Bennett's  Benjamin  on  Sales,  \  335  ;  citing,  Thorndike  ?>.  Bath, 
114  Mass.  110. 

5  See  Laidler  v.  Burlinson,  2  Mees.  &  W.  602  ;  Langdell's  Cases  on 
Sales,  6G4,  671. 

6  2  Schouler  on  Personal  Property,  \  250 ;  citing,  Woods  v.  Rus- 
sell, 5  Barn.  &  Aid.  942  ;  Langdell's  Cases  OTI  Sales,  7!)4  ;  Young  v. 
Matthews,  Law  R.  2  Com.  P.  127  ;    Langdell's  Cases  on  Sales,  875  ; 
McConihie  ?>.  New  York  etc.  R.  R.  Co.  20  X.  Y.  41)5 ;  Brown  v.  Bate- 
man,  Law  H.  2  Com.  P.  272 ;  Thorndike  v.  Bath,  114  Mass.  116. 

XEWMAKK  SALES. —  15. 


§    120          SALES  OF  MANUFACTUBED  CHATTELS.  170 

7  See  Laidler  v.  Burlinson,  2  Mees.  &  W.  664 ;  Langdell's  Cases  on 
Sales,  664,  672. 

8  See  Story  on  Sales,  \\  232,  233. 

9  2    Schouler  on    Personal  Property,  ?  268  ;   stating,   Young  v. 
Matthews,  Law  R.  2  Com.  P.  127  ;   Langdell's  Cases  on  Sales,  875 ; 
and  noting  for  comparison,  Crofoot  v.  Bennett,  2  Comst.  258  :  Lang- 
dell's Cases  on  Sales,  772. 

JO    Bill  of  sale  in  general :  See  1  Bouvier  Law  Diet.  (14th  ed.)  207. 

11  2  Schouler   on   Personal    Property,  §  268,  whence  paragraph 
derived. 

12  See  Thorndike  r.  Bath,  114  Mass.  116.    Yet  while  this  transfer 
holds  good  as  between  tiie  parties,  it  might  be  regarded  as  a  fraud 
upon  creditors,  by  leaving  the  seller  in  visible  possession.    Compare 
Shaw  v.  Smith,  48  Conn.  306 ;  40  Am.  Hep.  170. 

\  120.  Ship-building  contracts.—  Title  to  uncompleted 
vessel.  In  ship-building  contracts,  where  the  price  is 
payable  in  instalments  at  specified  stages  in  the  pro- 
gress of  the  work,  it  is  held  in  England  that  the  pay- 
ment of  the  first  instalment  vests  in  the  buyer  the  title 
in  so  much  of  the  vessel  as  is  then  constructed ; 1  and 
that  as  soon  as  new  materials  are  subsequently  added, 
they  immediately  become  the  property  of  the  buyer  2 
But  this  view  has  not  been  adopted  in  this  country;3 
and  on  the  contrary  it  has  been  generally  and  almost 
uniformly  held  that  no  title  vests  in  the  buyer  until  the 
vessel  is  completed.4 

Superintendent  for  intended  buyer.  It  is  said  to  !be 
agreed  that  the  additional  circumstance  that  the  vessel 
was  to  be  built  under  the  direction  and  subject  to  the 
approval  of  a  superintendent  appointed  by  the  intended 
buyer,  has  the  effect  of  appropriating  the  vessel  to  the 
contract  as  fast  as  it  is  constructed  ;5  but  it  is  the  Ameri- 
can doctrine  that  this  circumstance,  even  combined 
with  the  payment  of  the  price  in  instalments,  at  suc- 
cessive stages  of  the  work,  does  not  operate  to  transfer 
the  title.6 

Express  agreement  and  burden  of  proof.  And  it  has 
even  been  held,  that  where  by  the  express  undertaking 
of  the  parties  it  is  agreed  that  when  an  instalment  is 


171  SALES   OF   MANUFACTURED   CHATTELS.          §    123 

paid,  the  vessel,  so  far  as  then  constructed,  and  the 
materials  therein  inserted,  are  to  be  and  become  the 
property  of  the  persons  making  such  payments,  yet 
the  burden  is  on  the  intended  purchaser  to  show  that 
the  title  of  the  builders  was  divested  before  the  furnish- 
ing of  materials  upon  which  a  lien  was  claimed  to  have 
attached  against  the  builders.7 

Question  of  intent  and  interpretation.  The  view  taken 
by  the  Supreme  Court  of  the  United  States  does  not  favor 
any  such  arbitrary  rule  of  construction  as  that  adopted 
in  England,8  but  seeks  to  carry  into  effect  the  intent  of 
the  parties  as  gathered  from  the  terms  of  the  contract 
and  all  the  attendant  circumstances.9  And  neither  in. 
England  nor  in  America  is  the  question  treated  as  other 
than  one  concerning  the  interpretation  of  a  contract  to 
ascertain  the  true  intent  of  the  parties  ; 10  and  the  point  of 
difference  between  the  cases  is  not  regarded  as  vital,  but 
as  going  only  to  construction  and  the  burden  of  proof.11 

Stipulations  as  instalments,  superintendence,  etc.,  not  de- 
cisive. Thus  in  Massachusetts  it  has  been  declared  to  be 
erroneous  to  say,  as  is  sometimes  stated  by  text-writers, 
that  an  agreement  to  pay  the  purchase-money  in  instal- 
ments, as  certain  stages  of  the  work  are  completed,  or  a 
stipulation  for  the  employment  of  a  superintendent  by 
the  purchaser  to  overlook  the  work  and  see  that  it  is 
done  according  to  the  tenor  of  the  contract,  will  of  itself 
operate  to  vest  the  title  in  the  person  for  whom  the 
chattel  is  intended.12  And  it  is  said  that  such  stipula- 
tions may  be  very  significant,  as  indicating  the  intention 
of  the  parties,  but  they  are  not  in  all  cases  decisive,  as 
both  of  them  may  coexist  in  a  particular  case,  and  yet  the 
property  may  remain  in  the  builder  or  manufacturer.13 

1  See  citations  in  next  note. 

2  Woods  t>.  Russell,  5  Barn.  &  Aid.  942  ;  Langdell's  Cases  on  Sales, 
794.    And  see  Clarke  r.  Spence,  4  Ad.  <fe  E.  448  ;  Langdell's  Cases  on 
Sales,  816,  and  index  note  10UO.    Consult,  also,  Andrews  v.  Durant,  11 


$  121  SALES  OF   MANUFACTURED   CHATTELS.  172 

N.  Y.  305  ;  Langdcll's  Cases  on  Sales,  805,  890.  Earlier  English  cases 
otherwise:  Mucklow  v.  Mangles,  1  Taunt.  318;  Langdell's  Cases  on 
Sales,  792.  And  compare  Towers  v.  Osborne,  1  Strange,  50G  ;  Groves 
?'.  Buck,  o  Maule  <fe  S.  178 ;  Langdell's  Cases  on  Sales,  9.  Consult 
Elliott  v.  Edwards,  35  X.  J.  L.  265,  267. 

3  See  citations  in  next  note. 

4  See  Merritt  v.  Johnson,  7  Johns.  473  ;  5  Am.  Dec.  289  ;  Langdell's 
Cases  on  Sales,  8,^J ;  Andrews  v.  Durant,  11  N.  Y.  35 ;  Langdell's  Cases 
oa  Sales,  8;>4 ;  Williams  v.  Jackman,  16  Gray,  514  ;  Langdell's  Cases  on 
Sales,  906,  and  index  note  1030 ;  Green  v.  Hall,  1  Houst.  506, 514.    And 
consult  Johnson  v.  Hunt,  11  Wend.  135, 130 ;  Langdell's  Cases  on  Sales, 
8>5;  Briggs  v.  Lightboat,7  Allen,  287;  Tompkins  v.  Dudley,  25  N.  Y. 
272,  273;  Elliott  v.  Edwards,  35  N.  J.  L.  265,  267,  268;   Derbyshire's 
Estate,  81  Pa.  St.  18.    Compare,  also,  Gregory  v.  Stryker,2Demo,623; 
Mixerv.  Howarth,21  Pick.  205;  Langdell's  Cases  on  Sales,  25  ;  Spencer 
v.  Cone,  1  Met.  283;  Langdell's  Cases  on  Sales,  28  ;  Shaw  v.  Smith,  43 
Conn.  306  ;  40  Am.  Rep.  170 ;  McConihie  v.  N.  Y.  etc.  R.  R.  Co.  20  N.  Y. 
4  1 ;  West  Jersey  R.  R.  Co.  v.  Trenton  Car  Works  Co.  3S  N.  J.  L.  517. 
But  see  contra,  Saudford  v.  Wiggins,  27  Ind.  52.!. 

5  See  Clarke  v.  Spence,  4  Ad.  &  E.  448 ;  Langdell's  Cases  on  Sales, 
816,  and  index  note  1030.    So  that  as  soon  as  the  construction  of  the 
vessel  is  begun,  there  is  a  contract  for  that  specific  vessel :  Clarke  v. 
Speuce,  4  Ad.  &  E.  448. 

6  Andrews  v.  Durant,  1  IN.  Y.  35;  Langdell's  Cases  on  Sales,  894, 899. 

7  Elliott  v.  Edwards,  35  N.  J.  L.  265,  268. 

8  See  preceding  portion  of  section. 

9  Clarksou  v.  Stevens,  106  U.  S.  505,  515. 

10  See  citations  in  next  note. 

11  2  Schouler  on  Personal  Property,  §  267  ;  citing,  Briggs  v.  Light- 
boat,  7  Allen,  287;  Elliott  v.  Edwards,  35  N.  J.  L.  265;  Clarkson  v. 
Slovens,  106  U.  S.  506. 

12  Briggs  v.  Lightboat,  7  Allen,  287, 203. 

n  Briggg  v.  Lightboat,  7  Allen,  287, 293.  The  question  Is  considered 
tob;?o:ieci  intent,  arising  on  the  interpretation  of  the  entire  con- 
t.acti'i  eaeh  case:  Briggs  r.  Lightboat,  7  Allen,  287.  £&  And  it  is 
asserted  that  even  in  England  where  the  cases  go  the  farthest  in 
holding  that  property  in  a  chattel  in  the  course  of  construction 
p  isses  to  and  vests  in  the  purchaser,  these  stipulations  are  not  always 
<l"(">i"d  to  be  conclusive  of  title  in  him:  Briggs  v.  Lightboat,  7  Alien, 
287,  293. 

\  121.  Payment  of  instalments  of  price.  —  English  rule 
of  construction.  The  English  rule  of  construction  is 
that  where  in  a  ship-building  contract  the  price  was  to  be 
paid  in  portions,  according  to  the  progress  of  the  work, 
on  payment  of  the  first  instalment  the  general  property 
in  so  much  of  the  vessel  as  is  then  constructed  shall 
vest  in  the  purchaser.1 

American  views.  This  rule  has  been  fo?1.owed  in  In- 
diana,2 but  a  similar  doctrine  to  that  of  Massachusetts, 


173  SALES  OF  MANUFACTURED  CHATTELS.        \  122 

which  leaves  the  question  to  be  settled  by  the  intention 
of  the  parties,3  appears  to  be  adopted4  in  New  York,5 
Pennsylvania,6  and  New  Jersey,7  as  well  as  by  the 
Supreme  Court  of  the  United  States.8 

1  Clarke  v.  Spence,  4  Ad.  &  E.  448  ;  Langdell's  Cases  on  Sales,  816, 
828  ;  following,  Woods  v.  Bussell,  5  Barn.  &  Aid.  942  ;  Langdell's  Cases 
Oil  Sales,  794.    And  see  Laidler  v.  Burlinson,  2  Mees.  &  W.  602 ;  Lang- 
dell's  Cases  on  Sales,  664,  671  :  Wood  v.  Bell,  5  El.  &  B.  772  ;  6  El.  &  B. 
355  ;  Langdell's  Cases  on  Sales  847,  854  ;  Campbell  on  Sales, 27*.    Con- 
sult Andrews  v.  Durant,  1  Kern.  35  ;  Langdell's  Cases  on  Sales,  594, 
900,  W4  ;  citing,  Story  on  Sales,  $?  315,  316 ;  Long  on  Sales,  288  ;  Chltty 
cm  Contracts,  378,  379  ;  Abb.  Shipp.  4,  5. 

2  Sandford  v.  Wiggins'  Ferry  Co.  27  Ind.  522,  527. 

3  See  Briggs  v.  Lightboat,  7  Allen,  287,  292 ;  Williams  v.  Jackman, 
16  Gray,  514  ;  Langdell's  Cases  on  Sales,  906,  909  ;  Wright  v.  TetJow,  99 
Mass.  397,  404. 

4  According  to  Bennett's  Benjamin  on  Sales,  \  351,  n.  in. 

5  See  Andrews  v.  Durant,  1  Kern.  35 ;  Langdell's  Cases  on  Sales, 
894,  900  ;  Merritt  v.  Johnson,  7  Johns.  473;  Langdell's  Cases  on  Sales, 
883,  884. 

6  Derbyshire's  Estate,  81  Pa.  St.  18,  22 ;  citing,  Scull  v.  Shakspear, 
75  Pa.  St.  297.  303.    And  see  Coursin's  Appeal,  79  Pa.  St.  220;  Long's' 
Appeal,  8t  Pa.  St.  18.    New  contract  by  taking  chattel  in  unfinished 
state  :  See  Clemens  v.  Davis,  7  Pa.  St.  263,  264. 

7  Elliott  v.  Edwards,  35  N.  J.  L.  265,  268;  relying  upon  West 
Jersey  B.  B.  Co.  v.  Trenton  Car  Works.  32  N.  J.  L.  517,  5-4. 

8  Clarkson  v.  Stevens,  lOfi  IT.  S.  505,  515.    But  see  Calais  Steamboat 
Co.  1  Cliff.  370,  378,  379 ;   reversed  on   other  grounds,  2  Black,  372  ; 
U.  S.  Bevenue  Cutter,  4  Am.  L.  T.  Bep.  N.  S.  39. 

§  122.  Unattached  materials.  —  Presumption  against 
transfer  of  title.  The  property  in  materials  designed  for 
an  unfinished  chattel,  and  not  affixed  thereto,  such  as 
a  rudder  and  cordage,  bought  for  some  particular  ship 
by  the  seller  of  the  ship,1  will  still  be  presumed,  not- 
withstanding a  constructive  change  of  ownership  in  the 
unfinished  chattel,  to  remain  in  such  seller,  if  the  mate- 
rials have  not  been  so  incorporated 2  with  the  principal 
thing  as  to  become  part  of  it,3  though  this  rule  may  be 
affected  by  the  mutual  agreement  of  the  parties  clearly 
expressed.4 

Effect  of  acceptance.  And  while  the  approval  of  the 
buyer's  own  agent,  if  it  goes  directly  to  the  point  of  ac- 
cepting the  product,  will  conclude  the  buyer  himself 


§   122          SALES  OF   MANUFACTURED   CHATTELS.  174 

as  to  acceptance  of  work  made  to  order,5  yet  accept- 
ance merely  with  the  intent  of  pronouncing  materials 
suitable  for  the  structure  constitutes  no  acceptance  of 
the  structure  into  which  those  materials  are  worked.6 

Applications  of  principles.  These  principles  have  been 
applied  to  contracts  concerning  parts  of  steam-engines, 
unrivetecl  iron  plates,  other  iron  materials,  and  un- 
fastened planking  for  a  screw  steamer ; 7  concerning 
sash-frames  for  hotel  windows,  approved  by  the  sur- 
veyor, but  removed  from  the  premises  to  affix  puller's 
to  them;8  concerning  plank  worked  into  columns  for 
piazzas  and  other  carved  work  contained  in  a  barn  on 
the  lot  on  which  the  house  for  which  the  products  were 
designed  was  to  be  erected;9  and  concerning  boilers 
and  other  new  machinery  completed  and  ready  to  be 
fixed  on  board  a  vessel  which  was  lost  at  sea  after  one 
instalment  of  the  price  of  the  work  had  been  paid.10 

1  Compare  Woods  v.  Russell,  5  Barn.  <fc  Aid.  942 ;  Langdell's  Cases 
on  .Saie-s,  T.'-l,  71/7. 

2  2  Schouler  on  Personal  Property,  2  268. 

3  Soe  Wood  v.  Bell,  5  El.  &  B.  662;  6  El.  &  B.  35.r> ;  Langdell's 
Casi-s  Oil  Sales,  847,  868  ;  Tripp  v.  Armituge,  4  Mees.  &  W.  687  ;  Lang- 
deli's  Caseson  Sales,  821,829,835;  Johnson  r.  Hunt,  11  Wend.  135;  contra, 
Woods  v.  Russell,  5  Barn.  «fe  Aid.  94'-';  Langdell's  Cases  on  Sales,  7:»4, 797 ; 
Goss  v.  Quiutou,  3  Man.  <fe  G.  825  ;  Langdell's  Cases  on  Sales,  885,  887. 

4  See  Brown  v.  Bateman,  Law  R.  2  Com.  P.  272. 

5  2  Schouler  on  Personal  Property,  $  268,  whence  paragraph  de- 
rived ;  citing,  Young  r.  Matthews,  Law  R.  2  Com.  P.  127  ;  Langdell's 
Cases  on  Sales,  275;  Clarke  v.  Spence,  4  Ad.  &  E.  467;  Langdell's 
Cases  on  Sales,  816,  8.0. 

6  Tripp  v.  Armitage,  4  Mees.  &  W.  687  ;  Langdell's  Cases  on  Sales, 
829,  834.    Such  approval  does  not  mean  the  assent  of  the  parties  to 
ti'.ke  the  article  and  pay  for  it  at  once,  but  merely  the  appro vfll  of  it 
as  a  proper  thing  to  be  put  up  :  Tripp  v.  Armitage,  4  Mees.  &  W.  687. 

7  Wood  v.  Bell,  5  El.  &  B.  772 ;  6  El.  <ft  B.  355  ;  Langdell's  Cases  on 
Sales,  847,  852. 

8  Tripp  v.  Armitage,  4  Mees.  &  \V.  687 ;  Langdell's  Cases  on  Sales, 
820,  834. 

9  Johnson  r.  Hunt,  11  Wend.  135;  Langdell's  Cases  on  Sales,  885, 
887.    See  Abbott  v.  Blossom,  66  Barb.  353,  354. 

10  Anglo-Egyptian  Navigation  Co.  v.  Rennie,  Law  R.  10  Com.  P. 
271.  See  statements  of  cases  in  Bennett's  Benjamin  on  Sales.  %$  339  o, 
342  ;  1  Corbin's  Benjamin  on  Sales,  \\  387,  390.  And  compare  Camp- 
bell on  Sales,  273,  274. 


175  SALES  OF   MANUFACTURED  CHATTELS.          \  123 

§  123.  Title  to  chattels  not  finished. —  Unfinished  cutter 
nearly  paid  for.  Where  the  buyer  made  a  payment  of 
nearly  the  entire  price  for  an  unfinished  cutter,  which 
the  seller  was  to  finish  within  ten  days,  but  such  seller 
became  bankrupt  without  having  finished  the  cutter,  it 
was  held  that  no  title  had  passed  to  the  buyer  who 
brought  trover  for  the  value  of  the  cutter  against  the 
seller's  assignee.1 

Wagon  not  finished  in  time.  And  where  a  wagon  was 
ordered  to  be  built,  price  payable  in  mutton,  and  the 
mutton  was  furnished  and  the  wagon  was  completed, 
but  not  in  the  time  stipulated,  it  was  declared  that  no 
property  in  such  case  vests  until  the  thing  is  finished 
and  delivered.2 

Construction  of  cars.  So  where  a  contract  was  made 
for  the  construction  of  five  cars,  and  the  buyer  furnished 
plush  for  the  seats  for  a  price  amounting  to  more  than 
the  price  of  one  car,  and  to  be  deducted  from  the  bill 
for  the  five  cars,  but  one  of  the  cars  came  into  the  pos- 
session of  the  buyer  without  the  manufacturer's  con- 
sent, and  trover  was  brought  for  its  value  against  the 
company  which  held  under  the  buyer,  it  was  held  that 
upon  any  construction  of  the  contract  the  car  remained 
the  property  of  the  manufacturer,  and  the  plush  passed 
to  him  as  the  owner  of  the  car.3 

1  Halterline  v.  Rice,  62  Barb.  503  ;  following,  Andrews  v.  Durant, 
1  Kern.  35 ;  Langdell's  Cases  oil  Sales,  894. 

2  Bennett  v.  Platt,  9  Pick.  558  ;  quoting,  Mucklow  v.  Mangles,  1 
Taunt.  318  ;  Langdell's  Cases  on  Sales,  792.    Though  the  case  was 
decided  on  the  ground  that  by  suing  for  the  value  of  the  muttori 
the  buyer  had  elected  to  rescind  the  contract,  and  could  not  after- 
wards  claim,  property  in  the  chattel :  Bennett  v.  Platt,  9  Pick.  558. 

3  West  Jersey  Railroad  Co.  v.  Trenton  Car  Works,  32  N.  J.  L.  517. 
But  where  cars  were  manufactured  under  the  supervision  of  an 
agent  of  the  buyer,  payment  to  be  made  monthly,  as  the  work  pro- 
gressed, It  was  held  that  title  vested  without  delivery:  Bank  oi 
Upper  Canada  ?;.  Killaly,  21  Up.  Can.  Q.  B.  9 ;  following,  Wood  v. 
Bell,  5  El.  &  B.  772;  6  El.  &  B.  355:  Langdell's  Cases  on  Sales,  847. 
Source  of  foregoing  statements  of  cases:  1  Corbin's  Benjamin  on 
Sales,    §g408,  409,   411,  413.     Compare   Phelps   v.  Willard,  16   Pick. 


§   124          SALES  OF  MANUFACTURED   CHATTELS.  176 

§  124.  Title  to  unfinished  vessels, —  Trover  for  ship 
attached  when  two  thirds  finished.  Where  a  ship-builder 
contracted  to  build  a  ship,  receiving  payment  in  three 
equal  instalments,  as  the  work  progressed,  and  after 
the  ship  was  two  thirds  finished  and  two  thirds  paid  for 
it  was  attached  and  sold  by  creditors  of  the  builder,  but 
the  buyer  having  received  possession  refused  to  give  it 
up,  and  trover  was  brought  against  him,  it  was  held  that 
the  question  in  such  cases  was  one  of  intent,  and  that  it 
was  not  reasonable  to  suppose  that  the  property  was  to 
pass  before  completion,  especially  as  the  ship  was  to  be 
delivered  at  Philadelphia,  and  pass  inspection  there.1 

Title  in  buider  as  against  lien  claimants.  And  where 
the  contract  was  for  the  construction  of  a  vessel,  price 
payable  by  instalments  as  the  work  progressed,  and  it 
was  expressly  agreed  that  as  the  instalments  should  be 
paid,  the  vessel  so  far  as  constructed  should  become 
the  property  of  the  buyer,  it  was  held  where  persons 
furnishing  materials  filed  liens  against  the  vessel  and 
against  the  builder  as  owner,  that  the  title  was  in  the 
builder,2  and  that  it  devolved  on  the  buyers  to  show  that 
payments  divesting  that  title,  under  the  terms  of  the 
agreement,  were  made  before  the  materials  of  the  claim- 
ants were  furnished,  and  their  lien  thereby  attached.3 

_ZVb  title  in  government  before  completion  and  delivery. 
So  it  has  been  held  that  under  a  contract  to  build  three 
light  vessels  for  the  United  States,  and  to  deliver  them 
when  completed  within  a  fixed  time,  no  title  passed  to 
the  United  States  until  their  completion  and  delivery, 
where  the  builder  was  to  be  governed  during  the  pro- 
gress of  the  building  of  them  by  an  agent  of  the  United 
States,  and  to  perform  the  work  to  his  satisfaction,  for 
a  price  to  be  paid  after  their  completion,  and  there  was  a 
provision  that  the  United  States  might  at  any  time 
declare  the  contract  null.4 


177  SALES  OF  MANUFACTURED   CHATTELS.          $   124 

Provisions  as  to  instalments  and  superintendence. 
The  American  doctrine  against  transfer  of  title  has  also 
been  laid  down  in  cases  where  the  work  of  building  a 
barge  was  to  be  performed  under  the  direction  of  a 
superintendent  employed  by  the  buyers,  and  was  to  be 
paid  for  at  specific  stages  of  the  work ; 5  and  a  like  con- 
clusion has  been  reached  where  the  contract  was  to 
build,  finish,  and  complete,  ready  for  sea,  a  first-class, 
copper-fastened  ship,  but  as  the  agreement  was  con- 
strued, there  was  no  stipulation  to  pay  instalments  at 
certain  specified  successive  stages  of  the  work,  though 
there  was  an  arrangement  for  advance  payments, 
and  there  was  no  right  reserved  to  exercise  any 
superintendence  or  control  over  the  work,  though 
oversight  thereof  by  an.  agent  of  the  buyers  was 
permitted.6 

1  Green  v.  Hall,  1  Houst,  508,  543 ;  citing  and  following,  Merritt  v. 
Johnson,  7  Johns.  473  ;  Langdell's  Cases  oa  Sales,  883 ;  and  Andrews 
v.  Durant,  1  Kern.  35 ;  Langdell's  Cases  on  Sales,  894.    Stating  that 
the  English  doctrine  of  appropriation  announced  in  Woods  v.  Rus- 
soll,  5  Barn.  &  Aid.  942,  Langdell's  Cases  on  Sales,  794,  and  Clarke  v. 
Sporice,  4  Ad.  cfe  E.  413,  Langdell's  Cases  on  Sales,  816,  had  never 
been  followed  in  America. 

2  Elliott  v.  Edwards,  35  N.  J.  L.  2G5.    As  on  an  executory  con- 
tract to  build  a  vessel,  to  be  paid  tor  in  instalments  as  the  work  pro- 
gresses, the  title  remains  in  the  builder  until  the  work  is  completed 
n:id  delivered:  Elliott  v.  Edwards,  35  N.  J.  L.  265  ;  affirmed  on  writ 
ol  error,  as  Edwards  v.  Elliott,  36  N.  J.  L.  449  ;  following,  Andrews  v. 
Durant,  1  Kern.  35 ;  Langdell's  Cases  on  Sales,  894 ;  and  Laidler  v. 
Burllnson,  2  Mees.  <fe  W.  602;  Langdell's  Cases  on  Sales,  664.    But 
refusing  to  follow :  Woods  v.  Russell,  5  Barn.  &  Aid.  942  ;  Langdell's 
Cases  on  Sales,  794  ;  and  Clarke  v.  Spence,  4  Ad.  <fc  E.  448 ;  Langdell's 
Cases  on  Sales,  816. 

3  Elliott  v.  Edwards,  35  N.  J.  L.  265.   So  that  in  the  absence  of  proof 
on  this  point,  the  liens  were   sustained :   Elliott  v.  Edwards,  35 
N.  J.  L.  2(>5  ;  approving,  Groves  v.JBuck,  3  Maule  &  S.  178 ;  Langdell's 
Casos  on  Sales,  9:  and  Mucklow  v.  Atangles,  1  Taunt.  318  ;  Langdell's 
Cases  on  Sales,  792;  also,  Andrews  v.  Durant.  1  Kern.  35;   Lang- 
doll's  Cases  on  Sales,  894  ;  and  Mixer  v.  Ilowarth  21  Pick.  205  ;  Lar.g- 
dell's  Cases  on  Sales,  25.    And  regarding  as  not  easily  reconciliable 
with  established  principles  :  Woods  v.  Russell,  5  Barn.  <fe  Aid.  942  ; 
Langdell's  Cases  on  Sales,  794.    Source  of  foregoing  statements  of 
cases :  1  Corbin's  Benjamin  on  Sales,  \\  410,  412. 

4  Briggs  v.  Lightboat,  7  Allen,  287 ;  as  stated,  Bennett's  Benja- 
min on  Sales,  §  Z~A.  n.  in.    And  see  1  Corbin's  Benjamin  on  Sales, 
£  399  ;  followed,  Wright  v.  Tetlow,  <J9  Mass.  397. 


\  124 


SALES  OF  MANUFACTURED  CHATTELS. 


178 


5  Andrews  v.  Durant,  1  Kern.  35;  Langdell's  Cases  on  Sales,  894, 
898,  902  ;  stating,  discussing,  and  declining  to  follow,  English  cases  of 
Woods  v.  Russell,  5  Barn.  &  Aid.  942,  Langdell's  Cases  on  Sales,  794, 
aad  Clarke  r.  Spence,  4  Ad.  &  E.  448  ;  Langdell's  Cases  on  .Sales,  816  ; 
also  stating  and  relying  upon,  Merritt  v.  Johnson,?  Johns.  473  ;  Lang- 
dell's C'ases  on  Sales,  883 ;  and  referring  to  Johnson  v.  Hunt,  11  Wend. 
Io5 ;  Langdell's  Cases  on  Sales,  8S5  ;  Blackburn  on  Sales,  158. 

6  Williams  r.  Jackman,  16  Gray,  514;  Langdell's  Cases  on  Sales, 
906,  90S,  90') ;  approving,  Andrews  v.  Duraiit,  1  Kern.  55 ;  Langdell's 
Cases  on  Sales,  894. 


179  APPROPRIATION.  \  125 


CHAPTER  XI. 

APPROPRIATION. 

§  125.  Appropriation  in  general. 

\  126.  Scope  of  term. 

\  127.  Acts  of  appropriation. 

\  128.  Appropriation  by  seller. 

§  129.  Determining  election. 

\  130.  Assent  to  appropriation. 

2  131.  Acts  of  assent. 

§  132.  Restricted  appropriation,  etc. 

\  133.  Conformity  to  contract. 

g  134.  Excess  in  quantity  of  goods. 

g  135.  Substitution  of  other  goods. 

\  136.  Delivery  as  showing  appropriation,  etc. 

§  137.  Delivery  to  carrier. 

§138.  Delivery  "free  on  board." 

§  139.  Dispatching  goods. 

§  140.  Handing  over  documents. 

2  141.  Accepting  or  discounting  bill  of  exchange. 


\  125.  Appropriation  in  general.  —  Required  for  un- 
specified chattels.  Under  a  contract  for  sale  of  chattels 
not  specific,  the  property  does  not  pass  to  the  purchaser 
unless  there  is  afterwards  an  appropriation  of  the  specific 
chattels  to  pass  under  the  contract ; l  that  is,  unless  both 
parties  agree  as  to  the  specific  chattels  in  which  the 
property  is  to  pass,  and  nothing  remains  to  be  done  in 
order  to  pass  it.2 

Effect  on  prior  executory  contract.  And  after  an  execu- 
tory contract  of  sale  has  been  entered  into,  it  may  be 
converted  into  a  complete  bargain  and  sale  by  the  sub- 
sequent appropriation  of  specific  chattels  to  the  contract.3 

Need  of  specifications,  etc.  For  it  is  said  to  be  an  ele- 
mentary principle  of  law,  applicable  alike  to  sales,  mort- 


§  126  APPROPRIATION.  180 

gages,  and  pledges,  that  the  contract  becomes  executed 
only  by  specifying  the  goods  to  which  is  to  attach  ;  or 
in  legal  phrase,  by  the  appropriation  of  the  specific 
goods  to  the  contract.4  So  it  is  declared  that  no  rules 
of  the  law  of  vendor  and  purchaser  are  more  clear  than 
this,  that  the  property  is  not  transferred  until  the  appro- 
priation and  separation  of  a  particular  quantity,  or  sig- 
nification of  assent5  to  the  particular  quantity.6  But 
under  what  may  be  termed  the  modern  American  doc- 
trine, where  the  mass  from  which  the  sale,  mortgage, 
or  pledge  is  made,  is  a  uniform  mass,  as  wheat  in  an 
elevator,  separation  from  the  mass  isinot  necessary  to  con- 
stitute an  appropriation  of  the  property  to  the  contract.7 

1  "Mirahita  7-.  The  Imperial  Ottoman  Bank,  Law  B.  3  Ex.  D.  164, 
172  ;  31  Eng.  Hep.  201. 

2  Mirabita  ?•.  The  Imperial  Ottoman  Bank,  Law  B.  3  Ex.  D.  164, 
172 ;  31  Eng.  Rep.  '201.    And  see  Wait  v.  Baker,  2  Ex.  1 ;  Langclell's 
Cases  on  Sales,  942,  946. 

3  See  Merchant's  Nat.  Bank  v.  Bangs,  109  Mass.  291,  295. 

4  Fishback  v.  Van  Deusen,33  Minn.  Ill,  122.    Until  this  is  done  the 
contract  is  executory,  and  the  property  does  not  pass:  Fishback  v. 
Van  Deusen,  33  Minn.  Ill,  122. 

5  See  \  130,  on  ASSENT  TO  APPROPRIATION. 

6  Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases  on  Sales. 
851,  804. 

7  Fishback  v.  Van  Deusen,  33  Minn.  Ill,  122  ;  19  The  Reporter,  501. 

§  126.  Scope  of  term.  —  Conversion  of  executory  con- 
tract into  bargain  and  sale.  The  rule  in  regard  to  trans- 
fers of  chattels  not  specific  is  as  stated,1  that  after  an 
executory  contract  has  been  made  it  may  be  converted 
into  a  complete  bargain  and  sale  by  specifying  the  goods 
to  which  the  contract  is  to  attach,2  or,  in  legal  phrase,  by 
the  appropriation  of  specific  goods  to  the  contract, 
thereby  supplying  the  sole  element  deficient  to  make  a 
perfect  sale.3  And  although  the  contract  has  been  made 
in  two  successive  stages,  instead  of  being  completed  at 
one  time,  yet  it  is  none  the  less  one  contract,  namely,  a 
bargain  and  sale  of  goods.4 


181  APPROPRIATION.  \  127 

Different  senses  of  word  "  appropriation."  But  the 
word  "appropriation  "  may  be  understood  in  different 
senses.5  Thus,  it  may  mean  a  selection  on  the  part  of 
the  vendor,  where  he  has  the  right  to  choose  the  article 
which  he  has  to  supply  in  performance  of  his  contract,6 
or  it  may  mean  that  both  parties  have  agreed  that  a 
certain  article  shall  be  delivered  in  pursuance  of  the 
contract,  and  yet  the  property  may  not  pass  in  either 
case.7  "  Appropriation  "  may  also  be  used  in  another 
sense,  so  as  to  apply  to  the  case  where  both  parties 
agree  upon  the  specific  article  in  which  the  property 
is  to  pass,  and  nothing  remains  to  be  done  in  order 
to  pass  it.8 

Judicial  extension  of  term.  And  there  has  been  a 
judicial  extension  of  the  term,  through  delivery  and 
over  the  last  stage  of  transit  of  the  goods,  and  even  up 
to  a  final  acceptance  on  the  buyer's  part.9 

1  See  \  125,  on  APPROPRIATION  IN  GENERAL. 

2  See  citations  in  next  note.    And  consult  Campbell  on  Sales,  234» 
235. 

3  Bennett's  Benjamin  on  Sales,  ?  358.    And  see  Fishback  v   Van 
Deusen,  3.J  Minn.  Ill,  122 ;  2  fecliouler  on  Personal  Property,  #  260. 

4  See  section  on  SALE  OR  EXECUTORY  AGREEMENT  ;  Bennett's 
Benjamin  ou  Sales,  g  358. 

5  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942,  946. 

6  See  Rohde  v.  Thwaites,  6  Barn.  388,  393  ;  Langdell's  Cases  on 
Sales,  133,  140.    See  §  127,  on  ACTS  oy  APPROPRIATION. 

7  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942,  946. 

8  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942, 946.    Com- 
pare section  ou  PUTTING  INTO  DELIVERABLE  STATE. 

9  2  Schouler  on  Personal  Property,  \\  260,  265. 

\  127.  Acts  of  appropriation.  —  Parties  concerned  in. 
Sometimes  the  right  of  ascertainment  of  the  goods  sold 
rests  with  the  vendee,  and  sometimes  solely  with  the 
vendor ;  and  besides  the  case  where,  by  virtue  of  the 
original  agreement,  the  authority  to  appropriate  is  in 
one  party  ordy,  there  are  cases  where  one  party  appro- 
priates and  the  other  assents.1 
NEWMARK  SALES. —  16. 


§  127  APPROPRIATION.  182 

Selection  of  goods  and  adoption  of  act.  Thus,  the 
selection  of  the  goods  by  one  party,  and  the  adoption  of 
that  act  by  the  other,  may  convert  that  which  before 
was  a  mere  agreement  to  sell  into  an  actual  sale,  where- 
by the  property  passes.2  For  where  a  party  sells  part 
of  a  large  parcel  of  goods,  and  it  is  at  his  option  to  select 
part  for  the  vendee,  he  cannot  maintain  any  action  for 
goods  sold  and  delivered  until  he  has  made  that  se- 
lection ; 3  but  as  soon  as  he  appropriates  part  for  the 
benefit  of  the  vendee,  and  the  latter  assents  thereto,4 
the  property  in  the  article  sold  passes  to  the  vendee, 
although  the  vendor  is  not  bound  to  part  with  the  pos- 
session until  he  is  paid  the  price.5  And  there  has  been 
held  to  be  an  appropriation  passing  the  title  where  the 
vendor,  having  in  his  warehouse  a  quantity  of  sugar  in 
bulk,  agreed  to  sell  twenty  hogsheads,  filled  up  and 
delivered  four  hogsheads,  then  later  filled  up  the  re- 
maining sixteen  hogsheads,  and  gave  notice  to  the 
vendee  that  they  were  ready,  and  required  him  to  take 
them  away,  which  he  said  he  would  as  soon  as  he 
could.6 

Putting  goods  into  buyer's  receptacles,  etc.  So  it  has 
been  held  an  act  of  appropriation  which  vests  the  prop- 
erty in  the  buyer  for  the  seller  to  put  the  goods  into  the 
buyer's  receptacles,7  and  that  the  liability  of  the  seller 
ceased,  and  the  goods  were  at  the  risk  of  the  purchaser 
when  they  were  put  on  board  a  ship  bound  for  tlie 
place  of  delivery,  and  the  requisite  documents  handed 
over  to  the  buyer.8 

Conditional  appropriation  and  further  acts.  But  the 
appropriation  may  be  conditional  or  provisional,  as  on 
payment,9  or  where  the  vendor  retains  his  hold  upon  the 
goods  to  secure  payment  of  the  price,10  although  he  de- 
livers the  goods  to  a  carrier  and  thus  puts  them  in 
course  of  transportation  to  the  place  of  destination.11 


183  APPROPRIATION.  §  128 

And  there  may  also  be  further  acts  requisite  on  the 
part  of  the  seller  to  put  the  property  into  a  deliverable 
state.1'-' 

1  Aldridge  r.  Johnson,  7  El.  <fe  B.  885;  Langdcll's  Cases  on  Sales, 
8Ti,  8(54.    Compare  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  N. 
822  ;  Langdell's  Cases  on  Sales,  970, 5)8S). 

2  See  Rohde  v.  Thwaites,  6  Barn,  &  C.  388.  393 ;  Langdell's  Cases 
on  Sales,  138,  140 ;  Bennett's  Benjamin  on  Sales,  §  358,  n. ;  stating, 
Clailin  v.  Boston  etc.  R.  B.  7  Allen,  341 ;  citing,  Hyde  v.  Lathrop,  2 
Abb.  N.  Y.  App.  4-J6  ;  and  referring  also  to  following  cases  :    U.  #.  — 
Chapman  v.  Searle,  3  Pick.  33  ;  Merchants'  Nat.  Bank  v.  Bangs,  102 
Mass.  2<tl, 295  ;  Thompson  v.  Conover,  3  Vroom,  4W  :  Gough  v.  Edelin, 
6  Gill,  101.     Can.  —  Coleman  v.  McDermot,  5  Up.  Can.  C.  P.  303  ;  Bick- 
ford  v.  Grand  Jun^.   Ry.  Co.  1  Duval,  G:tO,  72J.    New  JBruns.  —  Mac- 
phorson  v.  Fredericton  Boom  Co.  1  Hann.  337. 

3  Soe  citations  in  note  after  next. 

4  Assent  to  appropriation  :  \  130. 

5  Rohde  v.  Thwaites,  6  Barn.  &  C.  388,392;  Langdell's  Cases  on 
Sales,  138.    And  see  Fragano  v.  Long,  4  Barn.  &  C,  21!) ;  Langdcll's 


Com.  P.  270  ;  ]  .angdell's  Cases  on  Sales,  87 

6  Rohde  v.  Thwaites,  6  Barn.  &  C.  388  ;  Langdell's  Cases  on  Sales, 
138. 

7  Langton  v.  Iliggins,  4  Hurl.  &  M.  402  ;  Langdell's  Cases  on  Sales, 
877.    A:ul  see  Aklridge  v.  Johnson,  7  El.  &  B.  885 ;  Langdell's  Cases  on 
Bales,  8" ) ;  Ogg  v.  Shuter,  Law  R.  10  Com.  P.  159, 102  ;  reversed,  Law 
R.  1  C!.  P.  D.  47. 

8  Tregolles  v.  Sewell,  7  Hurl.  &  N.  574.     And  see  Sparkes  v. 
Marshall,  .2  Bing.  N.  C.  761.    Compare  Bryans  v.  Nix,  4  Mees.  &  W. 
77o. 

9  Godts  v.  Rose,  17  Com.  B.  229  ;  25  Law  J.  Com.  P.  61 ;  Langdell's 
Cases  on  Sales,  970. 

10  See  chapter  on  RESERVATION*  OF  COXTHOL. 

11  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  201,  295.    And  see 
g  137,  on  DELIVERY  TO  CARBIKB. 

12  2  Schouler  on  Personal  Property,  2§  260, 2(53.    And  see  section  on 
Prrrixo  INTTO  DKL.IVEKABLE  STATE. 

§  128.  Appropriation  by  seller.  —  Difficulty  in  determin- 
ing finality  of  act.  The  real  difficulty  in  determining 
when  the  appropriation  is  complete  is  presented  in  cases 
where  the  requisite  acts  of  subsequent  appropriation1 
are  to  be  performed  by  the  seller,  and  not  by  the  buyer.2 
And  it  is  said  that  the  ablest  judges  have  been  perplexed 
in  cases,  not  where  it  is  agreed  that  the  purchaser 
shall  select  out  of  the  bulk  belonging  to  the  vendor, 


§   128  APPROPRIATION.  184 

but  where  the  vendor  is,  by  the  express  or  implied 
terms  of  the  contract,  entitled  to  make  the  selection.3 
Under  such  circumstances  the  difficulty  is  declared  to 
be  to  determine  what  constitutes  the  appropriation,  or  in 
other  words,  to  find  out  at  what  precise  time  the  seller 
is  no  longer  at  liberty  to  change  his  intention.1 

Deliverable  condition  and  completion  of  delivery.  And 
perhaps  it  might  be  added  that  the  difficulty  goes  be- 
yond the  mere  act  of  converting  the  original  agreement 
into  a  sale  of  specific  goods,  and  extends  to  the  more 
general  inquiry  as  to  how  far  a  transfer  of  property  is 
delayed  through  the  seller's  omission  to  put  the  goods 
into  deliverable  condition,5  and  then  make  full  de- 
livery, as  contemplated  under  the  agreement.6 

Identification,  setting  apart,  etc.  The  doctrine  laid 
down  upon  the  subject  is  that  when  from  the  nature  of 
the  subject  the  vendor  is  to  make  the  appropriation, 
then  the  title  vests  and  the  sale  is  complete  as  soon  as 
any  act  is  done  by  him  identifying  the  property,  and  it 
is  set  apart  by  him  with  the  intention  unconditionally 
to  apply  it  in  fulfilment  of  the  contract.7  And  it  has 
been  held  that  title  to  timber  passed  as  fast  as  it  was 
made  and  marked,  although  it  was  not  all  delivered, 
and  the  buyer  failed  to  send  out  an  agent  to  accept 
every  part  of  it  as  it  was  made.8 

1  Acts  of  appropriation  :   \  127. 

2  2  Schouler  on  Personal  Property,  §  2GO,  p.  242. 

3  Bennett's  Benjamin  on  Sales,  \  3oS.    As  i:i  the  common  mode 
of  doing  business  where  one  merchant  gives  s.:x  order  to  anotli'-r  to 
sond  him  a  certain  quantity  of  merchandise,  as  so  many  to;;s  of  oil, 
so  many  tons  of  sugar,  in  which  case  it  becomes  the  vendor's  duty  to 
appropriate  the  goods  to  the  contract  :  Bennett's  Benjamin  on  Saks, 
§353. 

4  Bennett's  Benjamin  on  Sales,  ?  358.    For  it  is  regarded  as  plain 
that  the  vendor's  act  in  simply  selecting  such  goods  as  he  intends  to 


send  cannot  change  the  property  in  them,  since  he  may  lay  them 

s  ;  or  he 

mitting  a  wrong,  bec 

they  do  not  yet  belong  to  the  first  purchaser,  and  the  vendor  may 

' 


aside  in  his  warehouse,  and  change  his  mind  afterwards  ;  or  he  may 
haser  with 


s°ll  them  to  another  purchaser  without  committing  a  wrong,  because 
they  do  not  yet  belong  to  the  first  purchaser,  and  the  vendor  ma 
set  aside  other  goods  for  him  :  Bennett's  Benjamin  on  Sales,  \  358. 


APPROPRIATION.  §  129 

5    See  section  on  PUTTING  INTO  DELIVERABLE  STATE. 


qu 

suppose  th'3  agreement  had  been  for  so  many  hogsheads  of  sugar,  to 
be  set  apart  by  the  seller,  and  held  by  him  subject  to  the  buyer's 
further  orders  as  to  destination,  and  the  goods  were  either  paid  for 
in  advance  or  sold  on  credit:  2  Schouler  on  Personal  Property,  \  260. 

7  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295. 

8  Dunning  v.  Gordon,  4  Up.  Can.  Q.  B.  309  ;  Bennett's  Benjamin  on 
Sales,  \  360,  n.  d. 

\  129.  Datarmining-  election.  —  Question  of  law.  whether 
intention  irrevocably  manifested.  It  is  declared  to  be  a 
question  of  law  whether  the  selection  made  by  the 
vendor  in  any  case  is  a  mere  manifestation  of  his  inten- 
tion which  may  be  changed  at  his  pleasure,1  or  a  de- 
termination of  his  right  conclusive  on  him,  and  no 
longer  revocable.2 

General  rule  on  subject  of  election.  And  the  general 
rule  on  the  subject  of  election  is  said  to  be,  that  when 
from  the  nature  of  an  agreement  an  election  is  to  be 
made,  the  party  who  by  the  agreement  is  to  do  the  first 
act,  which,  from  its  nature,  cannot  be  done  till  the 
election  is  determined,  has  authority  to  make  the  choice 
in  order  that  he  may  be  able  to  do  that  first  act  ;  3  and 
when  once  he  has  done  that  act,  the  election  has  been 
irrevocably  determined,  but  till  then  he  may  change 
his  mind.4 

ftij  dispatch  of  goods  or  other  overt  act.  It  follows 
from  this  that  where  from  the  terms  of  an  executory 
agreement  to  sell  unspecified  goods  the  vendor  is  to 
dispatch  the  goods,  or  to  do  anything  to  them  that  can- 
not be  done  until  the  goods  are  appropriated,  he  has 
the  right  to  choose  what  the  goods  shall  be;5  and  the 
property  is  transferred  the  moment  the  dispatcher  other 
act  has  commenced,  for  then  the  appropriation  is  made 
finally  and  conclusively  by  the  authority  conferred 
in  the  agreement,6  and  the  certainty,  and  thereby 
the  property  begins  by  election.7  Accordingly,  when 


g  130  APPROPRIATION.  186 

the  right  of  ascertainment  of  the  goods  rested  with 
the  vendor,  and  he  had  done  the  outward  act  which 
showed  which  part  is  to  be  the  vendee's  property,  as 
by  putting  barley  into  sacks  sent  by  the  buyer,  it  was 
held  that  his  election  was  made,  and  the  property 
passed.8 

Not  until  outward  act  actually  commenced.  But 
however  clearly  the  vendor  may  have  expressed  an 
intention  to  choose  particular  goods,  and  however 
extensive  may  have  been  his  preparations  for  perform- 
ing the  agreement  with  those  particular  goods, -yet 
until  the  act  has  actually  commenced  the  appropria- 
tion is  not  yet  final,  for  it  is  not  made  by  the 
authority  of  the  other  party,  nor  binding  on  him.9 

1  See  \  128,  on  APPROPRIATION  BY  SELLER. 

2  Bennett's  Benjamin  on  Sales,  \  358. 

3  See  citations  in  next  note. 

4  Bennett's  Benjamin  on  Sales,  ?  25T  ;  citing,  Hayward's  Case,  2 
Coke,  36  ;  Bhickburn  on  Sales,  128 ;  Lynch  ?>.  O'Donncll,  127  Mass.  311  ; 
W.uH<>ll  ?\  McBride,  7  Up.  Can.  C.  P.  382  ;  Coffey  v.  Quebec  Bank,  20 
Up.  Can.  C.  P.  110,  555. 

5  Blackburn  on  Sales,  128. 

6  S^e  Aldridge  v.  Johnson.  7  El.  &  B.  885 ;  Langdell's  Cases  on 
Sales,  855,  8G3. 

7  Hayward's  Case,  2  Coke,  36. 

8  Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases  on  Sales, 
850,  8G5,  8fi6. 

9  Blackburn  on  Sales,  128.    See  Bennett's  Benjamin  on   Sales, 
?  C60,  quoting  this  statement  of  the  law,  and  declaring  its  accuracy 
to  have  been  attested  in  Aldridge  r.  Johnson,  7  El.  &  B.  885,  901,  2fi 
Law  J.  Q.  B.  2%,  and  in  Coffey  v.  Quebec  Bank,  20  Up.  Can.  C.  P. 
110,  555. 

#  130.  Assent  to  appropriation. — Adoption  of  acts  of 
selection,  separation,  etc.  Where  it  is  incumbent  upon 
the  seller,  by  the  terms  of  the  agreement,  to  select  and 
separate,  and  then  notify  the  buyer,  and  these  acts  are 
done  by  the  seller,  the  property  passes  when  the  buyer 
accepts  the  situation,  if  not  before.1  Thus,  the  property 
has  been  held  to  pass  by  reason  of  an  appropriation  and 
assent  thereto  where  the  sellers  appropriated  for  the 


187  APPROPRIATION.  §  130 

benefit  of  the  buyer  sixteen  hogsheads  of  sugar  out  of 
twenty  hogsheads,  to  be  prepared  or  filled  up  by  the 
sellers,  and  communicated  the  fact  of  such  appropria- 
tion to  the  buyer,  desiring  him  to  take  the  goods,  and 
he  adopted  that  act  of  the  sellers,  and  said  he  would 
send  for  the  goods  as  soon  as  he  could.2 

Dispatching  goods.  Bat  it  is  questionable  whether 
this  assent  on  the  buyer's  part  is  necessary  to  complete 
the  appropriation,  since  in  many  cases  dispatching  the 
separated  goods,  under  circumstances  favoring  the  sup- 
position that  the  seller  meant  to  shift  the  property,  has 
been  held  to  make  the  appropriation  complete,  without 
waiting  for  the  buyer's  distinct  assent.3 

Putting  into  buyer's  receptacles.  So  it  has  been  held 
that  the  seller,  by  putting  barley  into  sacks  which  the 
buyer  had  sent  to  be  filled,  completed  the  selection  on 
his  part,  and  that  there  had  been  full  appropriation  as 
to  those  sacks,  which  the  seller  could  not  afterwards 
disturb.4  And  where  the  contract  was  for  pepper- 
mint oil,  to  be  put  into  bottles  furnished  by  the  buyer, 
the  filling  of  the  bottles  by  the  seller  was  held  a  com- 
plete appropriation  of  specific  goods  to  the  contract.5 

Inquiry  concerning  nature  of  conveyance.  Yet  in  a  case 
which  has  been  found  difficult  to  reconcile  with  others, 
and  whose  authority  has  been  doubted,  the  doctrine  ap- 
pears to  be  laid  down  that  although  the  seller  has  sepa- 
rated the  goods  and  placed  them  aside,  and  then  has 
written  to  the  buyer  to  ask  by  what  conveyance  the 
goods  shall  be  sent,  but  before  receiving  an  answer  goes 
into  bankruptcy,  the  property  does  not  pass,  because 
the  buyer  has  riot  assented  to  the  appropriation.6 

Need  of.  And  it  was  subsequently  declared  in  hold- 
ing that  the  ear-marking  of  cotton  sent  to  a  warehouse 
for  the  buyer  was  insufficient  to  pass  the  property  where 
the  buyer  afterwards  repudiated  the  contract  on  the 


g   130  APPROPRIATION.  188 

ground  that  the  cotton  did  not  correspond  with  the 
sample,  that  there  must  not  only  be  an  appropriation, 
but  an  appropriation  assented  to  by  the  vendee.7 

Anticipative,  implied,  etc.  It  was  admitted,  however, 
that  the  assent  of  the  vendee  may  be  given  prior  to  the 
appropriation  by  the  vendor;8  that  it  may  be  either 
express  or  implied;  and  that  it  may  be  given  by  an 
agent  of  the  party,9  as  by  a  warehouseman  or  wharf- 
inger.10 

Seller's  agency  for.  And  the  inference  to  be  drawn 
from  the  language  used  in  later  English  cases  is  said  to 
be  that  the  purchaser  may,  by  his  conduct,  make  the 
seller  his  agent  both  to  appropriate  and  give  in  advance 
whatever  assent  may  be  necessary  on  his  own  part ; u 
and  the  same  view  would  seem  to  prevail  in  America,12 
though  in  most  parts  of  this  country,  in  cases  involving 
the  right  of  property  under  such  circumstances,  mutual 
intent  as  a  question  of  fact  would  be  taken  as  the  mate- 
rial issue.13 

Statement  of  necessity  of.  It  has  been  declared  in 
England  to  be  established  that  the  purchaser  of  an  un- 
ascertained portion  of  a  larger  bulk  acquires  no  property 
in  any  part  until  there  has  been  a  separation  and  an  ap- 
propriation assented  to  by  both  vendor  and  vendee,  and 
that  nothing  passes  until  there  has  been  an  assent,  ex- 
press or  implied,  on  the  part  of  the  vendee.14 

1  See  Rohde  v.  Thwaites,  6  Barn.  &  C.  388  ;  Langdell's  Cns^s  on 
Sales,  133,  140 ;  2  Schouler  on  Personal  Property,  \  2f  1 ;  referring  also 
to  Wilkins  v.  Bromhead,  6  Man.  &  G.  963  ;  Langdell's  Cases  on  Sales, 
8,,S. 

2  Rohde  v.  Thwaites,  6  Barn.  &  C.  388  ;  Langdell's  Cases  on  Sales. 
138. 

3  See  Fragano  v.  Long,  4  Barn.  &  C.  219  ;  Langdell's  Cases  on  Sales, 
7iS  ;  Sparki  s  r.  Marshall,  2  Bing.  N.  C.  671  ;  so  cited,  2  Schouler  on 
Personal  Property,  \  261. 

4  Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases  on  Sales, 
859. 

5  Langton  v.  Higgins,4  Hurl.  &  N.  402  ;  Langdell's  Cases  on  Sales, 
867. 


189  APPROPKIATION.  \   131 

6  Atkinson  v  .  Bell,  8  Barn.  &  C.  277 ;  Langdell's  Cases  on  Sales, 
801,  804,  8U5;  discussed,  Bennett's  Benjamin  oa  Sales,?  :-?7.);  2  Schouler 
o.i  Personal  Property,  §  261 ;  Wilkins  v.  Bromhead,  6  Man.  &  G.  963  ; 
Langdell's  Cases  oil  Sales,  838, 842. 

7  Campbell  v.  Mersey  Docks,  14  Com.  B.  N.  S.  412 ;  Langdell's 
Cases  o  i  Sales,  873,  875 ;  citing,  Godts  v.  Hose,  17  Com.  B.  229  ;  Lung- 
dell's  Cases  on  Sales,  970. 

8  See  suggestion  that  there  may  be  an  antlcipative  assent,  in 
Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases  on  Sales,  85.), 8(i4. 

9  Soe  Jonner  v.  Smith,  Law  B.  4  Com.  P.  270 ;  Langdell's  Cases  on 
Sales,  877,  832. 

10  Campbell  v.  Mersey  Docks,  14  Com.  B.  N.  S.  412 ;  Langdell's 
Cases  oa  Sales,  873,  875. 

11  See  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  N.  822  ;  Lang- 
dell's Cases  o;i  Sales,  976,  W.)  ;  Tregelles  v.  Sewell,  7  Hurl.  &  N.  f-7l ; 
Calcutta  Company  r.  Do  Mattos,  32  Law  J.  Q.  B.  322  ;  Jenuer  v .  Smith, 
Law  B.  4  Com.  P.  270  ;  Langdell's  Cases  on  Sales,  877,  882. 

12  2  Schouler  on   Personal   Property,  \  262,  whence   paragraph 
derived. 

13  See  Bnswell  v.  Green,  1  Dutch.  390 ;  Merchants'  Nat.  Ba'ik  ?'. 
Bangs,  102  Mass.  195 ;  Hyde  v.  Lathrop,  2  Abb.  N.  Y.  App.  436  ;  Birge 
V.  Edgerton,  28  Vt.  291. 

14  Campbell  v.  Mersey  Docks,  14  Com.  B.  N.  S.  412  ;  Langdell's 
Cases  on  Sales,  873,  874,  875.    Referring  as  among  the  authorities  to 
Hanson  v.  Meyer,  6  East,  614 ;  Langdell's  Cases  on  Sales,  6:5') ;  Kugg 
v.  Minett,  11  East,  210;  Langdell's  Cases  on  Sales,  647;  liohde  v. 
Thwaites,  6  Barn.  &  C.  388 ;  9  Dowl.  &  R.  293 ;  Langdell's  Cases  on 
Sales,  138. 

\  131.  Acts  of  assent.  —  Acceptance  of  bill  of  lading. 
The  subsequent  appropriation  of  a  parcel  of  butter  has 
been  held  to  have  been  completed  by  mutual  assent, 
where  the  quantity,  quality,  and  price  of  the  goods 
were  all  specified  in  the  invoice,  and  the  bill  of  lading 
was  regularly  indorsed  to  the  buyers  and  accepted  by 
them.1  Hence,  the  greatest  part  of  the  goods  having 
been  lost  by  shipwreck,  it  was  held  that  the  proper'  y 
had  passed,  and  that  an  action  for  goods  bargained  and 
sold  was  maintainable,  although  the  goods  were  not  in 
the  possession  <>f  the  sellers  at  the  time  of  the  contract, 
and  there  had  been  a  delay  in  shipment,  which  was, 
however,  found  to  have  been  waived,  and  although  the 
payment  was  to  be  by  bill  at  two  months  after  landing.2 

Ordering  agent  to  insure  goods.  So  there  has  been 
considered  to  be  an  unequivocal  appropriation  of  black 


§   131  APPROPRIATION.  190 

oats  to  the  purchaser  by  a  letter  informing  him  that 
room  on  a  schooner  had  been  engaged  for  the  oats,  and 
an  assent  to  this  appropriation  and  adoption  thereof,  by 
the  action  of  the  agent  on  the  next  day  in  ordering  his 
agent  to  effect  insurance  on  such  oats.3 

oVb  authority  to  seller  or  warehouseman,  etc.  Where 
besides  a  sale  and  delivery  of  two  packets  of  hops  of 
one  variety,  a  further  sale  was  made  by  sample  of  two 
packets  of  another  variety  out  of  three  lying  in  a  ware- 
house, and  the  vendor's  son  instructed  the  warehouse- 
man to  set  apart  two  of  the  three  packets  for  the 
purchaser,  whereupon  the  warehouseman  placed  on 
them  a  "wait  order  card,"  that  is,  a  card  upon  which 
was  written,  "to  wait  orders,"  and  the  name  of  the 
vendee,  but  no  alteration  was  made  in  the  warehouse 
books,  while  the  vendor  still  remained  liable  for  the 
rent,  and  the  vendor  afterwards  sent  the  buyer  an  in- 
voice speaking  of  "the  last  two  packets  of  hops,'* 
therein  described  as  "  lying  at  your  order,"  and  also  a 
draft  for  acceptance,  but  the  buyer  returned  the  bill 
unsigned,  it  was  held  that  there  was  no  previous 
authority  to  the  seller  to  select  the  goods  given,  or  to 
the  warehouseman  to  accept  them,  and  hence  there 
was  no  assent  to  the  appropriation  thereof,4  and  that  the 
buyer  had  not  waived  the  right  to  object  to  the  want  of 
correspondence  of  the  hops  with  the  sample,  or  to  insist 
on  the  weight  being  ascertained  before  the  property 
passed.5 

1  Alexander  v.  Gardner,  1  Bing.  X.  C.  fi71 ;  Langdcll's  Cases  on 
S'Ues,  810,  813.    And  compare  Wilkins  v.  Bromhead,  6  Man.  &  G.  963 ; 
Lungdell's  Cases  on  Sales,  838,  841 

2  Alexander  v.  Gardner,  1    Bing.  X.  C.  6fil ;  Langri  ell's  Cases  on 
Snles,  810,  813  ;  following,  Rohde  r.  Thwaites,  6  Barn.  &  C.  3S3 ;  Lang- 
doll's  Cases  on  Sales,  1*8  ;  Fragano  v.  Long,  4  Barn*  &  G.  210;  La::g- 
dell's  Cases  on  Sales,  798. 

3  Sparkes  v.  Marshall,  2  Bing.  X.  C.  761. 

4  Jenner  v.  Smith,  Law  K.  4  Com,  P.  270 ;  Langdell's  Cases  on 
Sales,  S77,  882, 883. 


191  APPROPRIATION.  §  132 

5  Termer  v.  Smith,  Law  R.  4  Com.  P.  270  ;  Langdell's  Cases  on 
Sales,  877,  83'2.  883  ;  distinguishing,  case  next  cited,  on  the  ground 
that  there  the  bulk  of  the  b.irley  had  been  inspected  and  approved, 
and  all  that  remained  to  be  done  was  to  sever  and  measure  the 
portion  to  be  appropriated  to  the  vendee,  and  that  the  vendor  had 
done  so  by  filling  a  number  of  sacks  sent  by  the  vendee,  so  that  ex- 
tensive authority  was  conferred  on  the  vendor,  and  the  property 
passed,  with  the  assent  of  both  parties  :  See  Aldridge  v.  Johnson,  4 
El.  &  B.  8S5  ;  Langdell's  Cases  on  Sales,  859. 

\  132.  Restricted  appropriation,  etc.  —  Appropriation 
of  part.  Where  the  seller  of  barley,  to  whom  bullocks 
had  been  delivered  in  part  exchange  therefor,  tilled  a 
portion,  amounting  to  about  half,  of  the  sacks  sent  by 
the  buyer,  but  was  at  first  delayed  in  means  of  trans- 
portation, and  afterwards  telegraphed  orders  to  allow 
no  more  barley  to  go,  and  turned  it  all  out  of  the  sacks, 
so  as  to  be  undistinguishable  from  the  rest  of  the  heap,1 
it  was  held,  in  an  action  of  detinue  and  trover  by  the 
buyer  against  the  assignees  of  the  bankrupt  seller,  that 
there  had  been  appropriation  sufficient  to  pass  the 
property  in  the  sacks  which  were  filled,  but  not  in  re- 
gard to  the  rest  of  the  barley.2 

Conditional  appropriation.  Where  on  a  sale  of  five 
tons  of  oil,  "to  be  free  delivered  and  paid  for  in  four- 
teen days,"  it  was  by  the  seller's  direction  transferred 
to  the  buyer's  order  by  the  seller's  wharfinger,  who 
thought  the  property  had  passed,  and  delivered  the 
whole  to  the  buyer,  although  after  a  part  delivery  had 
been  procured  by  the  buyer,  a  countermand  had  come 
from  the  seller  because  the  buyer  had  refused  to  give 
his  check  for  the  price,  and  had  retained  the  wharfin- 
ger's notice  of  transfer,  it  was  held  that  the  delivery 
was  not  made  which  would  complete  the  appropriation 
of  the  goods  to  the  contract  and  pass  the  property,  as 
it  was  conditional  on  the  giving  of  a  check.3 

Erroneous  appropriation.  Where  a  broker  for  a 
newly  arrived  cargo  of  five  hundred  bales  of  cotton 
had  himself  purchased  two  hundred  and  fifty  bales, 


§   132  APPROPRIATION.  192 

which  had  been  landed  and  continuously  numbered  by 
the  company  at  whose  docks  the  vessel  had  arrived, 
and  on  paying  for  the  cotton  had  received  from  the 
company  an  indorsed  warrant  or  certificate  of  ware- 
housing for  two  hundred  and  fifty  bales  of  cotton  de- 
scribed as  being  numbered  from  one  to  two  hundred 
and  fifty,  together  with  a  delivery  order  for  the  same 
goods,  but  the  buyer  to  whom  the  broker  had  resold 
the  cotton,  to  whom  the  documents  mentioned  had  been 
sent,  repudiated  the  contract  on  the  ground  that  the 
cotton  did  not  correspond  with  the  samples,  and  there- 
upon the  seller  learnt  that  the  company  had  inadvert- 
ently delivered  two  hundred  of  the  bales  in  controversy 
to  other  parties,  and  sued  the  company  for  conversion 
of  the  cotton  bought  by  him,  it  was  held  that  a  verdict 
for  the  company,  substantially  on  the  ground  of  an  ap- 
propriation by  mistake,  was  sustainable,4  and  declared 
that  the  finding  of  the  jury  was  proper  upon  the  ques- 
tion whether  any  evidence  of  appropriation  did  not 
arise  from  a  mistake  of  one  of  the  company's  clerks, 
which  mistake  had  been  permitted  to  be  shown.5 

1  Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases  on  Sales, 
859. 

2  Aldridge  v.  Johnson,  7  El.  &  B.  8«5  ;  Langdell's  Cases  on  Sales, 
5.1,  864,  865.    Distinguished  on  ground  of  authority  conferred  to  com- 

;l.-te  appropriation  :  Jenrier  v.  Smith,  Law  R.  4  Com.  P.  270  ;  Lang- 
ell's  Cases  on  Sales,  877,  881,  882.  See,  also,  Bennett's  Benjamin  on 
Smiles,  §  370,  notes,  t,  u;  referring  to  Ropes  r.  Lane,  9  Allen,  509,  510; 
Mason  v.  Thompson,  18  Pick.  305;  Bond  r.  Greenwald,  4  Heisk.  453  ; 
R  ippleye  r.  Adee,  1  Thomp.  &  C.  1-7;  Gibb  v.  Belche,  62  Mo.  400; 
Butler  v.  Stanley,  21  Up.  Can.  C.  P.  402. 

3  Godts  v.  Rose,  17  Com.  B.  22') ;  25  Law  J.  Com.  P.  61 ;  Langdell's 
Cases  o:i  Sales,  970,  973, 1*74.    Cited  to  show  that  there  must  not  only 
bo  un  appropriation,  but  an  appropriation  assented  to  by  the  vendee, 
i  i  C  impbell  r.  Mersey  Docks,  14  Com.  B.  N.  S.  412 ;  LangdelPs  Cases 
on  Sales,  873,  875. 

4  CampbPlt  v.  Mersey  Docks  Co.  14  Com.  B.  N.  S.  412  ;  Langdell's 
Cases  on  Sales,  873,  875. 

5  Campbell  v.  Mersey  Docks  Co.  14  Com.  B.  X.  S.  412 ;  Lang- 
doll's  Cases  on  Sales,  873, 875.    But  assuming  that  there  was  an  appro- 
priation, it  seemed  to  be  considered  that  a:i  assent   to  such    an 
i  pjtronnation  wr.s  r^oxuisite :  Campbell  »-.  Mersey  Docks  Co.  14  Com. 
B.  i;.  S.  412  ;  Langdell's  Cases  on  Sales,  873,  875. 


S! 


193  APPROPRIATION.  \  133 

\  1C3.  Conformity  to  contract. —  Variance  from  order. 
Where  one  thing  is  ordered  and  another  sent,  there  can 
bo  in  the  setting  apart  by  the  seller  no  perfect  sale,  and 
consequently  no  binding  appropriation  of  specific  goods 
to  the  contract ; l  and  any  subsequent  acceptance  by  the 
buyer  of  goods  sent  in  fundamental  variance  from  his 
original  order,  or  of  goods  sent  to  replace  what  has  once 
been  appropriated  to  the  contract,2  evince  really  a  sub- 
stituted bargain  3  between  the  parties.4 

Late  delivery,  excess  in  quantity,  different  description. 
And  hence  if  goods  are  delivered  unreasonably  later 
than  the  time  set,5  or  in  excess  of  the  quantity  named,6 
or  of  an  altogether  different  description  from  those 
ordered,7  the  party  ordering  the  goods  may  refuse  to 
receive  them,8  for  it  cannot  be  maintained  that  the 
seller,  whose  duty  it  was  to  select  and  separate  has  any 
right  to  throw  the  selection  from  a  larger  quantity  upon 
the  buyer,9  or  stand  upon  his  own  misappropriation  of 
goods  to  the  contract.10 

Sale  by  sample.  So  where  a  sale  is  made  by  sample,11 
and  the  buyer  has  not  abandoned  his  right  of  compar- 
ing the  bulk12  with  the  sample,  or  of  verifying  the 
weight,13  the  seller  cannot  sue  him  for  goods  bargained 
and  sold,  merely  by  setting  aside  the  specific  portion  to 
await  orders,  and  then  sending  an  invoice  to  the  buyer, 
with  a  draft  for  the  price,  which  the  latter  refuses  to 
accept.14 

Conditional  appropriation.  And  where  the  appro- 
priation is  upon  condition,  as  of  payment  by  check,  the 
title  does  not  pass  so  as  to  enable  the  buyer  to  sue  as 
owner,  unless  full  delivery  to  that  purport  is  made  by 
or  under  the  authority  of  the  seller.15 

1  2  Schouler  on  Personal  Property,  \  263. 

2  See  Smith  v.  Myers,  Law  B.  5  Q.  B.  429  ;  Law  R.  7  Q.  B.  139. 

3  See  Cunliffe  v.  Harrison,  6  Ex.  903  ;  Langdell's  Cases  on  Sales, 
844,  846. 

N.EWMARK  SALES.  — 17. 


g   134  APPROPRIATION.  194 

4  2  Schouler  on  Personal  Property,  ?  263. 

5  See  Gath  v.  Lees,  3  Hurl.  &  C.  558 ;  Kommell  v.  Wingate,  103 
Mass.  327. 

8  See  Rommell  v.  Wingate,  103  Mass.  327  ;  Cunliffe  v.  Harrison,  6 
Ex.  903  ;  Langclell's  Cases  on  Sales,  844 ;  Levy  r.  Green,  1  El.  &  E. 
96J  ;  27  Law  J.  Q.  B.  111. 

7  See  Levy  v.  Green,  1  El.  &  E.  996 ;  28  Law  J.  Q.  B.  399. 

8  2  Schouler  on  Personal  Property,  \  263. 

9  See  Bennett's  Benjamin  on  Sales,  \  376,  referring  to  Cronir.ger 
v.  Crocker,  62  N.  Y.  151,  and  stating  Eaton  v.  Gay,  44  Mich.  431. 

10  2  Schouler  on  Personal  Property,  ?  263  ;  citing,  Cunliffe  v.  Har- 
rison, 6  Ex.  903;  Langdell's  Cases  on  Sales,  844  ;  Levy  v.  Green,  1 
El.  &  E.  969 ;  27  Law  J.  Q.  B.  Ill ;  Downer  v.  Thompson,  2  Hiil,  1:^7 ; 
Langdell's  Cases  on  Sales,  893  ;  Rommell  v.  Wingate,  103  Mass.  li_7. 

11  Sale  by  sample  :  See  2  Bouvier  Law  Diet.  tit.  Sample  (14th  ed.) 
497. 

12  See  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438 ;  Couston  ?•. 
Chapman,  Law  R.  2  Sc.  App.  250;  Grimoldby  v.  Wells,  Law  R.  10 
Com.  P.  391. 

13  Compare  Aldridge  v.  Johnson,  7  El.  &  B.  885  ;  Langdell's  Cases 
on  Sales,  859  ;  as  distinguished,  Tenner  v.  Smith,  Law  R.  4  Com.  P. 
270  ;  Langdell's  Cases  on  Sales,  877,  881. 

14  Jenner  v.  Smith,  Law  R.  4  Com.  P.  270 ;  Langdell's  Cases  on 
Sales,  877,  882  ;  as  noted,  2  Schouler  on  Personal  Property,  §  263  ;  also 
stated,  Campbell  on  Sales,  238. 

15  Godts  v.  Rose,  17  Com.  B.  229  ;  Langdell's  Cases  on  Sales,  970, 
974  ;  as  stated,  2  Schouler  on  Personal  Property,  $  263. 

§  134.  Excess  in  quantity  of  goods.  —  No  binding  appro- 
priation. Since  the  goods  sent  must  conform  to  the 
terms  of  the  contract  or  order,1  there  is  no  binding  ap- 
propriation where  ten  hogsheads  of  claret  were  ordered, 
and  fifteen  hogsheads  were  sent;2  or  where  two  hun- 
dred and  fifty  barrels  of  cement  were  ordered,  and  two 
hundred  and  sixty  barrels  were  sent.3 

Further  instances.  The  same  result  arises  where  three 
hundred  and  ninety-two  tons  of  coal  were  shipped,  in- 
stead of  a  cargo  of  three  hundred  and  seventy-five  tons 
offered  and  ordered,  and  the  shipper  did  not  begin  to 
load  until  nine  days  after  the  receipt  of  a  telegram  re- 
quiring immediate  loading,4  or  where  the  goods  sent  in 
excess  of  those  ordered  were  articles  entirely  different 
though  packed  in  the  same  crate,  and  a  rejection  of  the 
whole  was  sustained.5 


195  APPROPRIATION.  g§  135-136 

1  See  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942,  945. 

2  Cunliffe  v.  Harrison,  6  Ex.  008  ;  Langdell's  Cases  on  Sales,  844. 

3  Downer  v.  Thompson,  2  Hill,  137 ;  Langdell's  Cases  on  Sales,  893. 

4  Rommell  v.  Wingate,  103  Mass.  327. 

5  Levy  v.  Green,  1  El.  &  E.  996  ;  23  Law  J.  Q.  B.  319.    See  state- 
ments of  cases  in  Bennett's  Benjamin  on  Sales,  §  376 ;  citing,  also* 
Tarling  v.  O'Riordan,  2  Law  Bee.  82  ;  Shannon  v.  Barlow,  9  Irish  Jur. 
N.  S.  229. 

\  135.  Substitution  of  other  goods.  —  Destroyed  goods. 
Where  goods  appropriated  to  the  contract  were  destroyed 
by  an  earthquake  while  at  the  port  of  lading,  it  was  held 
that  a  contract  covering  this  specific  lot  was  not  supplied 
by  a  similar  cargo  afterwards  shipped  by  the  same 
vessel.1 

Rejected  goods.  But  an  appropriation  and  tender  of 
goods,  not  in  accordance  with  the  contract,  and  in  con- 
sequence rejected  by  the  purchaser,  does  not  prevent 
the  vendor  from  afterwards,  within  the  time  limited  for 
so  doing,  appropriating  and  tendering  other  goods  which 
are  in  accordance  with  the  contract.2  Thus  where  the 
vendors  being  bound  by  contract  to  tender  a  cargo  of 
maize  to  the  vendees,  tendered  a  cargo  which  was  re- 
jected as  not  being  in  accordance  with  the  contract,  and 
afterwards,  and  within  the  time  limited  for  so  doing, 
the  vendors  tendered  a  cargo  which  was  in  accordance 
with  the  contract,  it  was  held  that  this  second  tender 
was  good,  and  that  the  vendees  were  bound  to  accept  it.3 

1  Smith  v.  Myers,  Law  R.  5  Q.  B.  429 ;  Law  R.  7  Q.  B.  139  ;  as 
noted,  2  Schouler  on  Personal  Property,  \  263,  p.  246. 

2  Bennett's  Benjamin  on  Sales,  \  376  a,  stating  case  next  noted. 

3  Borrowman  v.  Free,  Law  R.  4  Q.  B.  D.  500  ;  distinguishing,  Gath 
v.  Lees,  3  Hurl.  &  C.  558.    Compare  Campbell  on  Sales,  237. 

J  136.  Delivery  as  showing  appropriation,  etc,  —  Signifi- 
cance of.  Among  circumstances  highly  significant  in 
establishing  full  appropriation  and  a  transfer  of  title  be- 
sides are  delivery  of  possession  on  the  seller's  part,  or 
carrying  the  goods  to  the  place  where  the  buyer  had  to 


§  137  APPROPRIATION.  196 

call  for  them.1  Thus  a  delivery  to  the  buyer  or  his 
agent,  or  to  a  common  carrier  consigned  to  him,  may 
be  a  sufficient  appropriation  of  the  goods.2 

Possession  given  for  purpose  of  separation.  And 
where  part  of  an  entire  mass  of  goods,  such  as  coal, 
brick,  or  grain,  is  sold,  and  the  purchaser  is  allowed  to 
take  possession  of  the  whole  for  the  purpose  of  enabling 
him  to  separate  the  part  sold,  the  title  to  that  part  passes 
to  the  purchaser,3  arid  he  may  retain  the  whole  till  he  has 
had  sufficient  time  to  separate  and  take  the  part  which 
belongs  to  him.4 

Bill  of  sale.  Delivery  of  an  absolute  bill  of  sale  of  the 
goods5  is  often  tantamount  in  this  connection  to  a  trans- 
fer of  title.6 

Dispatching  goods.  So  it  has  been  held  that  there 
was  a  change  of  risk,  and  that  the  property  to  goods, 
ordered  to  be  dispatched  on  insurance  being  effected, 
terms  to  be  three  months'  credit  from  the  time  of  arrival, 
passed  to  the  buyers  when  the  goods  left  the  vendor's 
warehouse,  marked  with  the  buyer's  initials,  and  were 
sent  by  canal  to  the  vendor's  shipping  agents  in  another 
city,  with  directions  to  forward  to  the  foreign  buyer.7 

1  2  Schouler  on  Personal  Property,  §  264.    And  in  fact  doing  all 
thdt  was  incumbent  on  the  seller,  yet  reserving  no  right  on  his  part : 
2  Schouler  on  Personal  Property,  §  264. 

2  See  Merchants'  Nat.  Bank  r.  Bangs,  103  Mass.  291,  295.    See 
next  section  on  DELIVERY  TO  CARBIER. 

3  See  citations  in  next  note. 

4  Lamprey  r.  Sargent,  58  N.  H.  241 ;  Weld  r.  Cutler,  2  Gray,  195  ; 
2  Schouler  on  Personal  Property,  §  264 ;  referring  also  to  Washburn 
Iron  Co.  v.  Russell,  130  Mass.  543. 

5  Bill  of  sale :  See  that  title  ;  Bouvier  Law  Diet.  (14th  ed.)  207. 

6  Paine  ?».  Young,  56  Md.  314  ;  so  cited,  2  Schouler  on  Personal 
Property,  g  264. 

7  Fragano  v.  Long,  4  Barn.  &  C.  219 ;  Langdell's  Cases  on  Sales, 
798,  799,  800. 

\  1?7.  Delivery  to  carrier.  —  Where  contract  silent. 
Should  the  contract  be  silent  as  to  the  person  or  mode 


197  APPROPRIATION.  §   137 

by  which  the  goods  are  to  be  sent,  a  delivery  by  the 
vendor  to  a  common  carrier  in  the  usual  and  ordinary 
course  of  business  transfers  the  property  to  the  vendee.1 

Sufficiency  of  appropriation.  And  in  general  a  deliv- 
ery to  the  buyer,2  or  his  agent,  or  to  a  common  carrier 
consigned  to  him,  whether  a  bill  of  lading  is  taken  or 
not,  if  there  is  nothing  in  the  circumstances  to  control 
the  effect  of  the  transaction,  will  be  a  sufficient  appro- 
priation of  the  goods.3 

Form  of  bill  of  lading.  If  the  bill  of  lading,4  or  other 
written  evidence  of  the  delivery  to  the  carrier,  be  taken 
in  the  name  of  the  consignee,  or  be  transferred  to  him 
by  indorsement,  the  strongest  proof  is  afforded  of  the 
intention  to  transfer  an  absolute  title  to  the  vendee.5 
But  the  vendor  may  retain  his  hold  upon  the  goods  to 
secure  payment  of  the  price,  although  he  puts  them  in 
course  of  transportation  to  the  place  of  destination  by 
delivery  to  a  carrier,  and  the  appropriation  which  he 
then  makes6  is  said  to  be  provisional  or  conditional.7 

Reservation  of  control.  Thus,  he  may  take  the  bill  of 
lading  or  carrier's  receipt  in  his  own  or  some  agent's 
name,  to  be  transferred,  on  payment  of  the  price,  by 
his  own  or  his  agent's  indorsement  to  the  purchaser, 
and  in  all  cases  when  he  manifests  an  intention  to  re- 
tain this  jus  disponendi,8  the  property  will  not  pass  to 
the  vendee.9 

1  Magruder  v.  Gage,  33  Md.  344  ;  3  Am.  Rep.  177,  180.    And  see 
Button  v.  Solomonson,  3  Bos.  &  P.  582,  584;  Krulder  v.  Ellison,  47 
N.  Y.  36  ;  7  Am.  Rep.  402. 

2  See  Washburn  Iron  Co.  v.  Russell,  130  Mass.  543,  544. 

3  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295.    And  see 
Wigtoii  v.  Bowley,  130  Mass.  252,  254. 

4  Bill  of  lading :  See  that  title  ;  Bouvier's  Law  Diet.  (14th  ed.)  204. 

5  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295.    And  see 
Griffith  v.  Ingledew,  6  Serg.  <fe  R.  429  ;  Wigtoii  v.  Bowley,  130  Mass. 
252,  254  ;  Hobart  v.  Littlefield,  13  R.  I.  341,  346. 

6  See  Brandt  v.  Bowlby,  2  Burn.  &  Adol.  932  ;  Langdell's  Cases  on 
Sales,  825,  929. 


§  138  APPROPRIATION.  198 

7  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295. 

8  See  Wigton  v  Bowley,  130  Mass.  252,  254. 

9  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295.    And  see 
First  Nat.  Bank  v.  Crocker,  111  Mass.  163,  167. 

§  138,  Delivery  "  free  on  board."  —  Indorsement  of  bill  of 
lading  taken  to  consignor's  order.  The  property  may 
pass  by  an  act  of  the  vendor  alone,  as  well  as  by  the 
act  of  the  vendor  communicated  to  the  purchaser,1  or 
by  the  mutual  consent  of  both  parties,  according  to  the 
terms  of  the  contract ; 2  and  where  a  quantity  of  the 
"best  refined  rape  oil "  is  ordered,  and  a  specific  quan- 
tity shipped  "free  on  board"  a  vessel,  the  title  and 
risk  passes  by  such  delivery  of  goods  originally  unas- 
certained.3 and  there  is  not  necessarily  a  retention  of 
control,4  although  the  bill  of  lading  was  taken  to  the 
consignor's  order  and  then  indorsed  over  to  his  agent.5 

Cargo  made  deliverable  to  third  j^arty's  order.  But  it 
has  been  held  that  notwithstanding  a  provision  in  the 
contract  for  the  purchase  of  all  the  ore  of  a  mine  to  be 
shipped  "  free  on  board  "  vessels  chartered  by  buyers  or 
seller,  payment  of  the  price  for  successive  shipments  of 
ore,  covering  the  full  amount  due,  could  not  per  se  oper- 
ate to  transfer  to  the  buyers  the  property  in  a  subsequent 
shipment  of  ore  on  vessels  chartered  by  the  buyers,  in 
the  absence  of  proof  of  a  prior  appropriation  thereof, 
when  the  shipper  in  dealing  with  the  bills  of  lading  mani- 
fested his  intention  to  reserve  thejusdisponendif'by  mak- 
ing the  cargo  deliverable  to  the  order  of  a  third  party.7 

When  not  condition  precedent.  Yet  where  the  goods 
are  not  specified  at  the  time  of  the  contract,  though 
deemed  to  have  been  subsequently  appropriated,  it  has 
been  said  that  a  stipulation  for  delivery  "  free  on  board" 
was  not  a  condition  precedent8  to  the  passing  of  the 
title,9  but  was  a  collateral  and  superadded  contract  to  be 
performed  afterwards.10 


199  APPROPRIATION.  $   138 

Only  part  of  goods  embarked.  So  where  the  offer  ac- 
cepted and  filled  was  for  fifty  bales  of  cotton  "free  on 
board,  and  freight,"  it  was  held  that  delivery  to  the 
buyer  was  complete,  and  the  title  was  in  him,  though 
only  part  of  the  cotton  was  embarked,  and  the  rest  was 
burned  on  the  dock.11 

Buyer's  vessels  not  ready  for  goods.  And  arrange- 
ments for  delivery  "free  on  board,"  etc.,  may  so  change 
the  risk  as  to  create  liability  for  warehouse  charges  where 
the  buyer's  vessels  are  not  ready  to  take  the  goods.12 

Low  water  preventing  transportation.  But  a  failure  to 
transport  barges  loaded  with  coal,  on  account  of  the 
lowness  of  the  water,  where  the  terms  were  cash  when 
delivered,  free  of  all  charge,  will  prevent  the  title  from 
passing  to  the  vendee  as  against  the  vendor's  attaching 
creditors.13 

Effect  on  seller's  lien,  etc.  Delivery  "free  on  board" 
a  vessel  of  goods  otherwise  appropriated  to  the  con- 
tract, if  its  completion  is  not  prevented  by  such  inter- 
vention as  the  agency  of  the  elements,  thus  transfers 
the  title  and  risk,  unless  the  form  in  which  the  bill  of 
lading  is  taken  distinctly  shows  a  design  to  reserve  the 
jus  disponendi;u  but  delivery  "free  on  board"  a  ves- 
sel does  not  divest  the  seller's  lien,15  if  the  receipt  for 
the  goods  is  in  the  seller's  name,16  unless  the  vessel 
belonged  to  the  purchaser.17 

1  See  \  130,  on  ASSENT  TO  APPROPRIATION. 

2  Browne  ?>.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  X.  822  ;  LangdelPs 
Cases  on  Sales,  976, 989.    And  see  Aldridge  ^>.  Johnson,  7  El.  &  B.  885  ; 
Langdell's  Cases  on  Sales,  859,  861. 

3  Change  of  title  and  risk :  See  under  chapter  on  TRANSFER  OF 
TITLE. 

4  Reservation  of  jus  disponendi :  See  subsequent  chapter  of  book. 

5  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  N.  822  ;  Langdell's 
Cases  on  Sales,  976,  989.    So  that  the  buyer  was  held  liable  for  the 
loss  of  the  oil  by  the  running  down  of  the  vessel,  though  the  seller's 
agent,  a  merchandise  broker,  delivered  the  bills  of  lading,  etc.,  after 
he  knew  that  the  vessel  was  lost:  Browne  v.  Hare,  3  Hurl.  &  N. 
484. 


§  139  APPROPRIATION.  200 

6  Compare  Ogg  v.  Shuter,  Law  R.  1  C.  P.  D.  47 ;  reversing,  S.  C. 
Law  R.  10  Com.  P.  159. 

7  Gabarron  v.  Kreeft,  Law  R.  10  Ex.  274. 

8  Compare  Hobart  v.  Littlefield,  13  R.  I.  341. 

9  Condition   precedent:   See   under   chapter   on   CONDITIONAL 
SALES. 

10  Coleman  v.  McDermot,  5  Up.  Can.  C.  P.  303.    And  see  Howland 
v.  Brown,  13  Up.  Can.  Q.  B.  199. 

11  Hobart  v.  Littlefield,  13  R.  I.  341.    But  compare  Sneathen  v. 
Grubbs,  88  Pa.  St.  147. 

12  Howland  v.  Brown,  13  Up.  Can.  Q.  B.  199. 

13  Sneathen  ?».  Grubbs,  88  Pa.  St.   147.    Statements  of  foregoing 
cases  :  Bennett's  Benjamin  on  Sales,  §£  363,  n.  /,  372,  n.,  398,  n.  a.    See 
also   following   cases    therein  cited,  discussing    delivery  "free  on 
board  "  in  various  phases:   Wilmot  r.  Wadsworth,  10  Up.  Can.  Q.  B. 
594, 5;)!) ;  George  v.  Glass.  14  Up.  Can.  Q.  B.  514,519 ;  Clark  v.  Rose,  29  Up. 
Can.  Q.  B.  Ifts,  178.    (Buyer's  duty  to  pay  or  tender  price.)    Marshall 
v.  Jamieson,  42  Up.  Can.  Q.  B.  115, 125.    (Buyer's  duty  to  provide  cars.) 

14  See  previous  citations  in  section. 

15  Seller's  lien  :  See  subsequent  chapter  of  book. 

10  Craven  v.  Ryder,  6  Taunt.  433  ;  Ruck  v.  Hatfield,  5  Barn.  &  Aid. 
632. 

17  Cowasjee  v.  Thompson,  5  Moore  P.  C.  C.  165.  Effect  of  delivery 
"  free  on  board,"  etc.,  on  right  of  stoppage  in  transitu :  See  Berndtson 
r.  Strang.  Law  R.  4  Eq.  481 :  3  Ch.  588  ;  36  Law  J.  Ch.  874  ;  Ex  parte 
Rosevear  China  Clay  Co.  Law  R.  11  Ch.  D.  560. 

§  139.  Dispatching  goods.  —  As  passing  title.  It  has 
been  said  in  England  that  when  goods  are  to  be  de- 
livered at  a  distance  from  the  vendor,  and  no  charge  is 
made  by  him  for  the  carriage,  they  become  the  prop- 
erty of  the  buyer  as  soon  as  they  are  sent  off.1  This  is 
stated  to  be  the  case,  because  a  seller  who  charges  for 
the  carriage  of  goods  is  presumed  to  have  intended 
keeping  control  of  them  during  the  transit,  and  so  pre- 
vented the  property  from  passing,2  while  the  presump- 
tion would  be  to  the  contrary  if  the  carrier's  charges 
were  to  be  adjusted  between  himself  and  the  buyer.3 

Delivery  to  carrier.  So  it  has  treated  as  settled  law  in 
that  country  that  where  a  vendor  delivers  goods  to  a 
carrier,  by  order  of  the  purchaser,  the  appropriation  is 
determined ;  the  delivery  to  a  carrier  is  a  delivery  to  the 
vendee,  and  the  property  vests  immediately ; 4  and  in  the 
United  States  the  law  is  established  to  the  same  effect.5 


201  APPROPRIATION.  §   140 

Bullion  billed,  shipped,  etc.  But  in  the  absence  of  a 
bill  of  lading  or  a  letter,  or  notice  from  the  consignor  to 
the  consignee,  informing  him  of  the  shipment  of  bullion, 
the  mere  fact  that  bullion  is  "  billed,  shipped,  marked, 
and  consigned  "  to  a  party,  is  not  such  an  appropriation 
of  the  property  to  the  contract  as  completes  a  bargain 
and  sale,  and  delivers  the  possession  of  the  property  to 
the  purchaser.6 

Goods  sent  on  trial  or  under  conditions.  And  when- 
ever the  goods  are  sent  on  trial  01  under  contract  of 
"sale  or  return,"  or  with  special  conditions  imposed, 
the  property  in  the  goods  remains  still  in  the  seller 
during  their  transit.7 

1  Fragano  v.  Long,  4  Barn.  <fe  C.  219  ;  Langdell's  Cases  on  Sales, 
798,  800.    See  section  on  DELIVERY  "  FREE  ON  BOARD." 

2  2  Schouler   on   Personal   Property,  2  264,  whence  paragraph 
derived. 

3  See  Dunlop  v.  Lambert,  6  Clark  &  F.  600  ;  Blanchard  v.  Page,  8 
Gray,  281. 

4  Button  v.  Solomonson,  3  Bos.  <fe  P.  582.    And  see  Cork  Dis- 
tilleries Co.  v.  Great  Southern  etc.  By.  Co.  Law  B.  7  II.  L.  2(5!) ;  Jo      - 
son  v.  Lancashire  etc.  By.  Co.  Law  B.  3  Com.  P.  D.  499.    Discuss^n 
of  appropriation  by  execution  of  order  for  a  shipment  of  goods : 
Campbell  on  Sales,  236-240. 

5  Krulder  v.  Ellison,  47  1ST.  Y.  36  ;  Bennett's  Benjamin  on  Sales, 
§  362,  citing  also  cases  in  last  note,  and  referring  to  following  Ameri- 
can cases :  Me.  —  Barry  v.  Palmer,  19  Me.  303;  Wing  v.  Clark,  24  Me.  366  ; 
Torrey  v.  Corliss,  83  Me,  336.     Vt.—  Strong  v.  Dodds,  47  Vt.  348.    N.  H.— 
Woolsey  v.  Bailey,  27  N.  H.  217  ;  Smith  v.  Smith,  27  N.  H.  244,  252; 
Garland  v.  Lane,  46  N.  H.  245,  248 ;  Arnold  v.  Print,  51  N  H.  587,  589  ; 
Mass.  —  Stan  ton  v.  Eager,  16  Pick.  467;  Putnam  v.  Tillotson,  13  Met. 
517;  Hunter  v.  Wright,  12  Allen,  548;  Kline  v.  Baker,  9!)  Mass.  253, 
254  ;  Johnson  v.  Stoddard,  100  Mass.  306, 308  ;  Odell  v.  Boston  etc.  B.  B. 
103  Mass.  50;  Suit  v.   Woodhall,  113  Mass.  394.    N.    F.  — Lucllow  i». 
Bauns,  1  Johns.  15  ;  Bodgers  v.  Phillips,  40  N.  Y.  519.    Mo.  —  Arm  en- 
trout  v.  St.  Louis  By.  Co.  1  Mo.  A  pp.  158.    Ill,  —  Stafford  v.  Walter,  67 
111.  83  ;  Devine  v.  Edwards,  101  111.  138. 

6  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325  ;  51  Am.  Rep.  51. 

7  2  Schouler  on  Personal  Property,  \  264 ;  citing,  Swain  v.  Shep- 
herd, l  Moody  &  B.  223. 

$  140.  Handing  over  documents.  —  Bill  of  lading  and 
policy  of  insurance.  Where  the  contract  of  sale  was 
made  at  London  between  residents  thereof,  and  the 
goods  bought  were  taken  at  a  designated  price  per  ton, 


?  143  APPROPRIATION.  202 

"delivered  at  Harburg,  cost,  freight,  and  insurance, 
payment  by  net  cash  in  London,  less  freight,  upon 
handing  the  bill  of  lading  and  policy  of  insurance,"  and 
the  document  was  described  which  was  "to  be  taken  by 
the  buyers  as  a  voucher  for  the  quantity  shipped,"  it- 
was  held  that  by  the  true  construction  of  this  sale  the 
seller  was  not  bound  to  make  delivery  of  the  goods  at 
Harburg,  but  only  to  ship  them  for  Harburg  at  his  own 
cost,  free  of  any  charge  against  the  purchaser,1  and  that 
the  property  passed  as  soon  as  the  seller  handed  the  bill 
of  lading  and  policy  of  insurance  to  the  purchaser.2 

Payment  of  part  of  price  contingent  on  arrival  of  goods. 
And  in  a  case  which  caused  a  marked  division  of  opin- 
ion, both  originally  and  on  appeal,  where  from  the  terms 
of  the  contract  of  sale  of  coals  supplied  to  a  company 
the  selection  of  the  particular  description  to  be  at  the 
company's  option,  it  was  regarded  as  clear  that  the  coals 
were  to  be  shipped  in  England,  on  board  a  vessel  to  be 
engaged  by  the  shipper,  to  be  insured,  and  the  policy 
of  insurance  and  bill  of  lading  and  in  voice  to  be  handed 
over  to  the  company  to  which  the  coals  were  furnished, 
it  was  considered  in  the  opinion  which  was  approved 
by  the  majority  of  the  judges,  and  was  the  basis  of  the 
rinal  judgment,  that  as  soon  as  the  vendor,  in  pursuance 
of  these  stipulations,  gave  the  company  the  policy  arid 
bill  of  lading,  he  irrevocably  appropriated  to  the  con- 
tract the  goods  which  were  thus  shipped,  insured,  and 
put  under  the  control  of  the  company;8  and  that  the 
prima  facie  construction  of  the  contract  that  the  parties 
intended  the  property  in  the  coals  vested  in  the  com- 
pany, and  the  right  to  the  price  in  the  vendor,  as  soon 
as  the  contract  came  to  relate  to  specific  ascertained 
goods,  that  is,  on  the  handing  over  of  the  documents 
mentioned,  was  not  contradicted  by  any  sufficient  indi- 
cation of  a  contrary  intention  in  the  contract,  but  that 


203  APPROPRIATION.  \  141 

the  goods  were  sold  and  delivered,  and  at  the  risk  of  the 
company,  though  the  payment  of  a  remaining  half  of 
the  price  was  contingent  on  completion  of  the  delivery 
at  a  port  in  India.4 

1  Tregelles  v.  Sewell,  7  Hurl.  &  N.  871. 

2  Tregelles  v.  Sewell,  7  Hurl.  <fe  N.  571.    As  stated,  Bennett's 
Benjamin  on  bales,  \  373. 

3  Calcutta  Company  v.  De  Mattos,  32  Law  J.  Q.  B.  322;  S.  C.  33 
Law  J.  Q.  B.  214.    For,  since  after  this  the  vendor  could  never  have 
been  required  to  ship  another  cargo  for  the  company,  and  would  not 
have  had  the  right  to  do  so,  it  was  declared  that  from  that  time  what 
had  originally  been  an  agreement  to  supply  any  coals  answering  the 
description  became  an  agreement  relating  to  the  particular  coals  in 
controversy  only,  just  asmuchas  if  the  coals  hadbeen  specified  from 
the  first :  Calcutta  Company  v.  De  Mattos,  32  Law  J.  Q.  B.  322. 

4  Calcutta  Company  v.  De  Mattos,  32  Law  J.  Q.  B.  322  ;  S.  C.  33 

Law  J.  Q.  B.  214.  This  view  was  maintained,  although  the  vessel 
which  sailed  for  that  port  never  arrived  at  her  destination,  and  the 
coals  were  never  delivered  in  conformity  with  the  con  tract:  Calcutta 
Company  v.  De  Mattos,  32  Law  J.  Q.  B.  322.  Other  opinions  were  to 
the  effect  that  the  coals  when  shipped  were  specifically  appropriated 
to  the  contract,  and  that  the  property  therein  passed,  subject  to  the 
vendor's  lien  for  the  price,  to  the  company,  which  by  the  transfer  of 
the  bill  of  lading  obtained  dominion  over  the  cargo,  and  could  have 
disposed  of  it  at  their  pleasure,  but  that  the  vendor,  on  account  of  his 
breach  of  tlie  contract  to  make  delivery  at  the  port  of  destination, 
was  bound  to  return  the  half  of  the  price  already  paid,  and  to  lose  his 
claim  for  the  remainder ;  and  on  the  other  hand,  that  the  whole 
cargo  remained  the  property  of  the  vendor  at  his  risk,  and  the  trans- 
fer of  the  documents  was  as  a  security  to  protect  the  company  for  its 
advance  on  the  price:  Calcutta  Company?'.  De  Mattos,  32  Law  J.  Q.  B. 
322.  See  statements  of  case  in  Bennett's  Benjamin  on  Sales,  $  374  ;  i 
Corbin's  Benjamin  on  Sales,  §§  501,503 ;  case  cited,  Campbell  on  Sales, 
220. 

\  141.  Accepting1  or  discounting  bill  of  exchange.  —  Ap- 
propriation  of  money  to  particular  goods.  Where  a  bill 
of  exchange  was  accepted  by  the  purchaser  on  account 
of  goods  ordered  from  a  manufacturer  which  were 
afterwards  completed  and  loaded  on  barges  to  be  for- 
warded to  the  purchaser,  but  the  manufacturer  becom- 
ing bankrupt,  trover  was  brought  for  the  goods  by  his 
assignees,  it  was  held  that  though  the  goods  were  made, 
yet  until  the  money  paid  was  appropriated  to  these 
particular  goods,  the  purchaser  could  not  have  main- 
tained trover  for  them,  if  they  had  even  been  sold  to 
another  person.1 


jj  141  APPROPRIATION.  204 

Discounting  bill  of  exchange  attached  to  bill  of  lading. 
But  where  a  bill  of  exchange  attached  to  bills  of  lading 
is  discounted  by  a  party  on  the  faith  of  the  bills  of  lad- 
ing, this  has  been  held  to  constitute  an  appropriation  of 
the  goods  mentioned  in  the  bill  of  lading,2  and  the  con- 
signee cannot,  having  notice  of  these  facts,  sell  the 
goods  to  a  third  person  to  satisfy  an  antecedent  debt.3 

1  Bishop  v.  Crawshay,  3  Barn.  &  C.  415. 

2  See  citations  in  next  note. 

3  See  Holmes  v.  German  Security  Bank,  87  Fa.  St.  525  ;  Holmes 
v.  Bailey,  92  Pa.  St.  57  ;  First  Nat.  Bank  v.  Pettit,  9  Heisk.  441  ;  1«  u*t 
Nat.  Bank  ?'.  Bensley,  9  Biss.  378,  383.    Source  of  foregoing  statements 
and  authorities  :  Bennett's  Benjamin  on  Sales,  \  378.    Bill  of  lading 
in  general :  See  subsequent  chapter  on  DOCUMENTS  OJT  TITLE. 


205  RESERVATION  OF  CONTROL.  2  142 


CHAPTER  XII. 

RESERVATION  OF  CONTROL. 

I  142.  In  general. 

§  143.  Evidence  of  intention. 

§  144.  Passing  of  title  to  buyer. 

§  145.  Bights  of  seller's  transferee. 

\  146.  Effect  of  delivery  to  carrier. 

\  147.  Bill  of  lading  to  seller's  order. 

§  148.  Delivery  on  board  buyer's  vessel. 

\  149.  Disposition  of  bill  of  exchange. 

\  150.  Transmission  to  buyer  of  indorsed  bill  of  lading. 

§  151.  Transmission  to  secure  advances. 

§  152.  Seller's  transmission  to  agent  of  bill  of  lading,  etc. 

g  142.  In  general.  — By  sellers  taking  bill  of  lading  to 
his  own  order ,  etc.  In  the  case  of  a  contract  for  sale  of 
chattels  not  specific,  the  delivery  by  the  vendor  to  a 
common  carrier,  or  shipment  on  board  a  vessel  belong- 
ing to  the  purchaser  or  chartered  by  him,  unless  the 
effect  of  the  shipment  is  restrained  by  the  terms  of  the 
bill  of  lading,  is  an  appropriation  sufficient  to  pass 
the  property.1  But  if  the  vendor,  when  shipping  the 
articles  which  he  intends  to  deliver  under  the  contract, 
takes  the  bill  of  lading  to  his  own  order,  and  does  so 
not  as  agent  or  on  behalf  of  the  purchaser,  but  on  his 
own  behalf,  it  is  held  that  he  thereby  reserves  to  him- 
self a  power  of  disposing  of  the  property,  so  that  there 
is  no  final  appropriation,2  and  the  property  does  not  oil 
shipment  pass3  to  the  purchaser.4 

Dealing  with  bill  of  lading  to  secure  price.  So,  if  the 
vendor  deals  with  the  bill  of  lading,  or  claims  to  retain 
it  in  order  to  secure  the  contract  price,  as  when  he  sends 
forward  the  bill  of  lading  with  a  bill  of  exchange  at- 
tached, with  directions  that  the  former  is  not  to  be  de- 
NEWMAKK  SALES.  — 18. 


\   143  RESERVATION   OF   CONTROL.  206 

livered  to  the  purchaser  till  acceptance  or  payment  of 
the  latter,  the  appropriation  is  not  absolute,5  but  until 
acceptance  of  the  draft,  or  payment  or  tender  of  the 
price  is  conditional  only.6  But  in  such  a  case  the  goods 
shipped  for  the  purpose  of  completing  the  contract  do 
vest  in  the  purchaser  on  payment  or  tender  of  the 
contract  price.7 

1  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164, 
172  ;  31  Eng.  Rep.  201, 208. 

2  See  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295;  First 
Nat.  Bank  v.  Crocker,  111  Mass.  167. 

3  See  Farmers'  etc.  Bank  v.  Logan,  74  N.  Y.  568,  578. 

4  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164, 
172  ;  31  Eng.  Rep.  201,  208.    The  vendor  in  such  a  case  has  the  power 
of  absolutely  disposing  of  the  cargo,  and  may  prevent  the  purchaser 
from  ever  asserting  any  right  of  property  therein  :  Mirabita  v.  The 
Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164,  172.    Accordingly, 
where  the  vendors  had  dealt  with  the  goods  for  their  own  benefit,  it 
was  held  that  the  purchaser  had  no  property  in  the  goods,  though 
he  had  offered  to  accept  bills  for  the  price,  or  had  paid  it :  See  Wait 
v.  Baker,  2  Ex.- 1 ;  LangdelPs  Cases  on  Sales,  942;  Ellershaw  v. 
Maeniac.  6  Ex.  570 ;  LangdelPs  Cases  on  Sales,  835 ;  Gabarron  v. 
Kreef  t,  Law  R.  10  Ex.  274. 

5  See  Farmers'  etc.  Bank  v.  Logan,  74  N.  Y.  568,  579,  and  citations 
in  next  note. 

6  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164. 
172  ;  31  Eng.  Rep.  201, 208.    And  until  such  acceptance  or  payment  or 
tender,,  the  property  in  the  goods  does  not  pass  to  the  purchaser: 
Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164, 172. 
Bee  Turner  v.  Trustees  of  Liverpool  Docks.  6  Ex.  543 ;  Langdell's 
Cases  on  Sales,  952 ;  Shepherd  v.  Harrison,  Law  R.  4  Q.  B.  11)6,  493 ; 
Law  R.  ">  II.  L.  116 ;  Langdell's  Cases  on  Sales,  9%  ;  Ogg  v.  Shuter, 
Law  R.  1  C.  P.  D.  47.    Consult,  also,  Dows  v.  Nat.  Exchange  Bank, 
01  T'.  «.  618 ;  Security  Bank  v.  Lutgen,  29  Minn.  363 ;  Marine  Bank 
v.  Wright,  48 1ST.  Y.  L 

7  Mi rabitav.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D.  164, 172  ; 
31  Eng.  Rep.  201, 209.    For  there  is  then  a  performance  of  the  condition 
subject  to  which  the  appropriation  is  made,  and  everything  is  done 
which  according  to  the  intention  of  the  parties  is  necessary  to  trans- 
fer the  property :  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R. 
3  Ex.  D.  1G4,  172.    Consult,  also,  Halliday  v.  Hamilton,  11  Wall.  560  ; 
Treaclwell  v.  Anglo-American  Packing  Co.  13  Fed.  Rep.  22. 

\  143.  Evidence  of  intention.  —  Provisional  or  condi- 
tional appropriation  allowed.  The  doctrine  upon  the 
subject  of  the  reservation  of  dominion  has  been  de- 
clared to  be  that  the  vendor  may  make  a  provisional  or 
conditional  appropriation  of  the  goods,  and  retain  his 
hold  upon  them  to  secure  payment  of  the  price,  al- 


207  RESERVATION  OP  CONTROL.  §  143 

though  he  puts  them  in  course  of  transportation  to  the 
place  of  destination  by  delivery  to  a  carrier.1  And  in 
all  cases  where  he  manifests  an  intention  to  retain  this 
jus  disponendi  the  property  will  not  pass  to  the  vendee.2 

Difficulty  in  ascertaining  intention.  But  practically 
the  difficulty  is  to  ascertain,  when,  the  evidence  is 
meager  or  equivocal,  what  the  real  intention  of  the 
parties  was  at  the  time.3 

Generally  question  of  fact  for  jury.  And  this  is  prop- 
erly a  question  of  fact  for  the  jury,  under  proper  in- 
structions,4 and  must  be  submitted  to  them,  unless  it  is 
plain  as  a  matter  of  law  that  the  evidence  will  justify  a 
finding  but  one  way.5 

Effect  of  making  bill  of  lading  deliverable  to  seller's 
order.  The  fact  of  making  the  bill  of  lading  deliver- 
able to  the  order  of  the  vendor  is  said  to  be,  when  not 
rebutted  by  evidence  to  the  contrary,  almost  decisive 
to  show  his  intention  to  preserve  the  jus  disponendi^ 
and  to  prevent  the  property  from  passing  to  the 
vendee.6 

1  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295.  Thus,  he 
may  take  the  bill  of  lading  or  carrier's  receipt  in  his  own  or  in  some 
agent's  name,  to  be  transferred  on  payment  of  the  price,  by  his  own 
or  his  agent's  indorsement  to  the  purchaser:  Merchants'  Nat.  Bank 


v.  Bangs,  102  Mass.  201, 205.  And  see  Mirabita  v.  The  Imperial  Otto- 
man Bank,  Lciw  R.  3  Ex.  D.  1G4, 172;  31  Eng.  Rep.  201, 2D3.  S?e  £'  — 
preceding  section  on  RESERVATION  OF  CONTROL  IN  GKXERAL. 


2  Merchants'  Nat.  Bank  v.  Baners,  102  Mass.  201,  2°5.    And  see 
"W Igt on  v.  Bowley,  130  Mass.  252,  231.    Transfer  of  title:  See  next 
chapter. 

3  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291, 295.    See  Hobart 
v.  Littlefield,  lo  R.  I.  «1,  SiG. 

4  See  citations  in  next  note. 

5  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  295  ;  quoted,  I^r- 
cheimer  v.  Stewart.  C-3  Iowa,  5J4, 596  ;  54  Am.  Rep.  30, 32.   And  see  Wig- 
ton  v.  Bowley,  1U)  Mass.  252,  254;  I>ows  v.  Nat.  Exchange  Bank,  91 
U.  S.  618,  634.    Consult  generally,  Bennett's  Benjamin  on  Sales,  $  332, 
n.  a,  quoting  foregoing  statements,  and  citing  following  cases:  Allen 
v.  Williams,  12  Pick.  '237 ;  Stanton  v.  Eager,  16  Pick.  473 ;  Coggill  v. 
Hartford  etc.  R.  R.  Co.  3  Grry,  545;  Lanafdell's  Cases  on  Sales,  713; 
Stevens  v.  Boston  etc.  R.  R.  Co.  8  Gray,  262 ;  Hobart  v.  Littlefield,  13 
R.  I.  :m,  nifi  ;  Farmers'  &  Mechanics'  Bank  v.  Logan,  71  N.  Y.  5G3; 
Emory's  Po^s  v.  Irving  Nat.  Bank,  25  Ohio  St.  S°0  ;  Sprfigue  v.  King, 
1  Puss  &  B,  241 ;  New  Brunswick  Ry.  Co,  v.  McLeod,  1  Pugs  &  B.  257, 


I   14*  RESERVATION  OF  CONTROL.  208 

6  See  First  Nat.  Bank  v.  Crocker,  111  Mass.  163, 167  ;  Reynolds  v. 
Scott,  4  Pac.  Rep.  (Cal.)  346 ;  18  The  Reporter,  452 ;  Dows  v.  Nat. 
Exchange  Bank,  91  U.  8.  618,  631.  And  compare  Emery's  Sons  v. 
Irving  Nat.  Bank,  25  Ohio  St.  360,  365. 

§  144.  Passing  of  title  to  buyer,  —  Ship  owned  or  hired 
by  buyer.  The  fact  that  the  ship  on  which  the  goods  are 
delivered  belongs  to  the  vendee,  or  is  hired  by  him, 
does  not  necessarily  cause  the  property  to  pass  where 
the  bill  of  lading  is  made  out  to  the  vendor's  order.1 

Bill  of  lading  indorsed  as  security  for  draft.  So  where 
goods  are  sent  by  a  bill  of  lading  indorsed  to  a  third 
person  as  security  for  a  draft,  the  property  does  not  pass 
at  law  until  the  draft  has  been  accepted  or  paid,  or  there 
has  been  a  waiver  of  acceptance  or  payment.2  And 
until  one  of  these  things  is  done,  the  goods  cannot  be 
attached  as  the  property  of  the  buyer;  so  that  if  he 
should  obtain  possession  of  them,  he  cannot  give  a  good 
title  even  to  a  bonafide  purchaser.8 

Procurement  of  blank  bill  of  lading.  But  the  title 
passes  where  the  procurement  from  the  captain  of  the 
buyer's  ship  of  bills  of  lading  with  a  blank  for  the  name 
of  the  consignee,  afterwards  filled  out  with  the  name 
of  the  seller,  is  effected  by  an  assurance  that  the  matter 
was  of  no  consequence.4 

Unindorsed  bill  of  lading  in  seller's  name.  So  where 
from  all  the  facts  it  may  fairly  be  inferred  that  it  was 
the  intention  of  the  seller  to  pass  the  property,  the  mere 
circumstance  of  the  bill  of  lading  being  taken  in  tlie 
name  of  the  seller,  and  remaining  unindorsed,  will  not 
prevent  the  property  from  passing.5 

Hill  \of  lading  specially  indorsed  to  buyer,  etc.  And 
whero  goods  were  to  be  delivered  "  free  on  board  a  ves- 
sel, and  the  bill  of  lading  was  made  out  to  shipper's 
order,"  but  on  the  same  day  was  specially  indorsed  to 
the  buyers,  and  sent  to  the  broker  who  negotiated  the 
sale,  it  was  held  that  the  intention  was  not  to  prevent 


209  RESERVATION   OF  CONTROL.  §   145 

the  passing  of  the  property,  and  hence  that  the  title  and 
risk  were  in  the  buyer.6 

Seller's  right  of  possession  and  lien.  Yet  even  where 
it  was  considered  that  the  title  and  even  the  risk  did 
pass,  it  has  been  suggested  that  the  seller  might  retain 
the  possession  and  a  lien  for  the  price.7 

1  See  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942  ; 
Turner  v.  Trustees  of  Liverpool  Docks,  6  Ex.  543  ;  Langdell's  Cases 
oa  Sales,  952.    And  consult  Falke  v.  Fletcher,  18.  Com.  B.  N.  S.  403  ;  34 
Law  J.  Com.  P.  146 ;  Langdell's  Cases  on  Sales,  990 ;  Dows  v.  Nat. 
Exchange  Bank,  91  U.  S.  618,  631. 

2  Forty  Sacks  of  Wool,  14  Fed.  Rep.  643,  645.    And  see  Dows  v. 
Nat.  Exchange  Bank,  91  U.  S.  618 ;  Newcomb  v.  Boston  etc.  R.  R. 
Corp.  115  Mass.  230,  233;  Jenkyns  v.  Brown,  14  Q.  B.  496 ;  Langdell's 
Cases  on  Sales,  948  ;  Shepherd  v.  Harrison,  Law  R.  4  Q.  B.  l'J6,  493  ; 
Law  R.  5  II.  L.  116  ;  Langdell's  Cases  on  Sales,  996. 

3  Forty  Sacks  of  Wool,  14  Fed.  Rep.  643,  645. 

4  Ogle  v.  Atkinson,  5  Taunt.  759 ;  Langdell's  Cases  on  Sales,  922. 
Or  where  a  railroad  receipt  and  way-bill  making  goods  deliverable  to 
the  seller's  order  were  taken  after  the  delivery  was  complete  enough 
to  vest  title  in  the  buyer:  Phila.  etc.  R.  R.  Co.  v.  Wireman,  88  Pa.  St.  264. 

5  Joyce  v.  Swan,  17  Com.  B.  N.  S.  84, 101.    And  see  Ogg  v.  Shuter, 
Law  R.  10  Com.  P.  159, 162  ;  City  Bank  v.  Rome  etc.  R.  R.  Co.  44  N.  Y. 
136. 

6  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  N.  822  ;  Langdell's 
Cases  on  Sales,  976.    And  see  Van  Casteel  v.  Booker,  2  Ex.  691 ; 
Hobart  v.  Littlefield,  13  R.  I.  34. 

7  See  Shepherd  v.  Harrison,  Law  R.  4  Q.  B.  196,  493  ;  Law  R.  5 
H.  L.  116  ;  Langdell's  Cases  on  Sales,  996, 1003  ;  Hobart  v.  Littlefleld. 
13  R.  I.  341,  346. 

g  145.  Rights  of  seller's  transferee.  —  Delivery  of  bill  of 
lading  to  purchaser  or  pledgee.  A  consignor  who  has  re- 
served the  jus  disponendij  may  effectuate  a  sale  or  pledge 
of  the  property  consigned,  by  delivery  of  the  bill  of 
lading  to  the  purchaser  or  pledgee,  as  completely  as  if 
the  property  were  in  fact  delivered.1  If  such  transfer 
of  the  bill  of  lading  be  made  after  the  property  has  passed 
into  the  actual  possession  of  the  consignee,  the  trans- 
feree of  the  bill 2  takes  it  subject  to  any  right  or  lien 
which  the  consignee  may.have  acquired  by  reason  of 
his  possession.3 

Transfer  before  consignee's  possession  of  goods.  But 
if  the  bill  of  lading  be  transferred  by  way  of  sale  or 


§   146  RESERVATION   OF   CONTROL.  210 

pledge  to  a  third  person,  before  the  property  comes  into 
the  possession  of  the  consignee,  the  consignee  takes  the 
property  subject  to  any  right  which  the  transferee  of 
the  bill  may  have  acquired  by  the  symbolic  delivery 4  of 
the  property  to  him.5 

Buyer's  objections  to  the  sale,  etc.  Where  the  buyer, 
when  the  bill  of  lading  made  out  to  the  seller's  order 
was  presented  to  him  unindorsed,  made  various  objec- 
tions to  the  sale,  but  finally  offered  the  price,  and  said  that 
he  accepted  the  cargo,  whereupon  the  seller  refused  to 
take  his  money  and  indorse  the  bill  of  lading  over  to  him, 
but  took  the  bill  from  the  counter  and  procured  an 
advance  thereon  from  another  customer,  it  was  held 
that  there  was  no  such  appropriation  as  would  pass  the 
property.6 

1  Emery's  Sons  v.  Irving  Nat.  Bank,  25  Ohio  St.  360,  366. 

2  Bill  of  lading  in  general :  See  under  chapter  on  DOCUMEXTS  OP 
TIT  LE. 

3  Emery's  Sons  ?-.  Irving  Nat.  Bank,  25  Ohio  St.  360,  366. 

4  See  under  chapter  on  DELIVERY. 

5  Emery's  Sons  v.  Irving  Nat.  Bank,  25  Ohio  St.  300,  366.    But  the 
principle  on  which  the  title  togqods  may  be  transfer  re- 1  by  atrui  sfer 
of  the  bill  of  lading  is  wholij^  distinct  from  that  on  which  the  right 
of  stoppage  in  transitu  rests :   Emery's  Sons  v.  Irving  Nat.  Bank,  25 
Ohio  St.  3GO,  066.    For  the  right  to  stop  goods  in  transit,  exists  only 
where  the  vendor  has  consigned  them  to  the  buyer  under  circum- 
stances which  vest  the  title  in  the  latter,  while  the  transfer  of  goods 
by  delivering  the  bill  of  lading  can  be  made  only  in  cases  wherr*  the 
vendor  hns  not  parted  with  the  title:  Emery's  Sons  r.  Irving  Nat. 
Bank,  25  Ohio  St.  3fiO,  366.    Stoppage  in  transitu  in  general :  See  sub- 
sequent chapter  of  book. 

6  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  942.    And 
that  the  second  customer  could,  as  owner  of  the  cargo,  sue  in  trover 
the  original  purchaser  who  had  taken  part  of  the  cargo  after  the 
arrival  of  the  vessel  in  port :  Wait  v.  Baker,  2  Ex.  1. 

I  146,  Effect  of  delivery  to  carrier.  —  As  parsing  title. 
Where  goods  are  delivered  by  the  vendor  in  pursuance 
of  an  order  to  a  common  -carrier  for  delivery  to  the 
buyer,  the  delivery  to  the  carrier  passes  the  property.1  as 
he  is  the  agent  of  the  vendee  to  receive  it,  and  the  deliv- 
ery to  him  is  equivalent  to  a  delivery  to  the  vendee.2 


211  RESERVATION   OF   CONTROL.  g   146 

Immaterial  circumstances.  To  produce  this  effect  it 
is  not  necessary  that  any  particular  carrier  should  be 
designated  by  the  buyer,3  nor  does  it  make  any  differ- 
ence4 which  party  is  to  pay  the  freight  for  the  goods.5 

Where  bill  of  lading  taken.  But  where  goods  are  de- 
livered on  board  of  a  vessel  to  be  carried,  and  a  bill  of 
lading  is  taken,  the  delivery  by  the  vendor  is  not  a  de- 
livery to  the  buyer,6  but  to  the  captain  as  bailee  for  de- 
livery to  the  person  indicated  by  the  bill  of  lading,  as 
the  one  for  whom  they  are  to  be  carried.7 

1  See  citations  in  next  note. 

2  Shepherd  v.  Harrison,  Law  R.  5  H.  L.  116 ;  (S.  C.  below,  Law  R. 
4  Q.  35.  U7,  4jJ);  Langdell's  Cases  on  Sales,  996,  1015;  quoting  a:.d 
approving,  Benjamin  on  Sales  (Eng.  ed.)  Inc.  ii.  ch.  6,  p.  2.S8,  as  rely- 
ing upon  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on  Sales,  1/42,  j;-i5. 
See  I  Corbin's  Benjamin  on  Sales,  \\  5(55, 573.  576 ;  Bennett's  Benjamin 
on  Sales,  §  3;)9,  n.  a.,  referring    also  to   following  English  cases  : 
Dawes  v.  Peck,  8  Term  Rep.  330 ;  Button  v.  Solomonson,  3  Los.  &  P. 
582  ;  London  etc.  Ry.  Co.  v.  Bartlett,  7  Hurl.  &  N.  500,  and  31  Law  J. 
Ex.  92 ;  Dunlop  v.  Lambert,  6  Clark  &  F.  600  ;  Cork  Distilleries  Co.  v. 
Great  So.  Ry.  Co.  Law  R.  7  H.  L.  269.    And  to  following  American 
cases:  Stan  ton  v.  Eager,  16  Pick.  467 ;  Putnam  v.  Tillotson,  13  Met. 
517;  Orcutt  v.  Nelson,  1  Gray,  5:!6;  Merchant  v.  Chapman,  4  Allen, 
362  ;  Hunter  v.  Wright,  12  Alien,  548  ;  Johnson  v.  Stodrtard,  100  Muss. 
306 ;  First  Nat.  Bank  of  Cairo  v.  Crocke.r,  111  Mass.  166;  Woolscy  v 
Bailey,  27  N.  H.  217  ;  Garland  v.  Lane,  46  N.  H.  245  ;  Arnold  v.  Front, 
51  N.  H.  587,  589  ;  Hobart  v.  Littlefield,  13  R.  I.  341 ;  Ludlow  v.  Bowne, 
1  Johns.  15;  Waldron  v.  Romaine,  22  N.  Y.  368  ;  Rodgers  v.  Phillips, 
40  N.  Y.  519  ;  Summeril  v.  Elder,  1  Binn.  106 ;  Griffith  v.  Ingledew,  6 
Serg.  <fe  R.  423 ;  Magruder  v.  Gage,  33  Md.  344  ;  Goodwyn  v.  Douglas, 
Cheves  L.  &  Eq.  174. 

3  See  Garland  v.  Lane,  46  N.  H.  245,  248  ;  Arnold  v.  Prout,  51  N.  H. 
537,  56J  ;  Yv  uUins  v.  Payne,  57  Ga.  50. 

4  According  to  Bennett's  Benjamin  on  Sales,  ?  39!),  n.  e,  whence 
paragraph  derived.     A  delivery  of   an  article    sold    to    a  person 
appointed  by  the  vendee  to  receive  it  is  a  delivery  to  the  vendee : 
Wing  v.  Clark,  24  Me.  366,  373  ;  Hunter  v.  Wright,  12  Allen,  548.    And 
so  iJ  a  delivery  at  the  place  agreed,  if  nothing  remains  to  be  done  by 
the  vendor :  Nichols  v.  Morse,  100  Mass.  523. 

5  See  Button  v.  Solomonson,  3  Bos.  &  P.  584;  Vale  v.  Boyle,  1 
Cowp.  294  ;  Ranny  v.  Higby,  5  Wis.  62. 

6  See  citations  in  next  note. 

7  Shepherd  v.  Harrison,  Law  R.  5  H.  L.  116;  (S.  C.  below,  Law 
R.  4  Q.  B.  197,  493);    Langdell's  Cases  on   Sales,  9J>6,  1015;  quoting 
K.id  approving,  Benjamin  on  Sales  (Eng.  ed.)  bk.  ii.  ch.  6,  p.  288,  as 
relying  upon  Wait  v.  Baker,  2  Ex.  1  ;  Langdell's  Cases  on  Sales, 
942,  915,  and  Moakes  v.  Nicolson,  Ii)  Com.  B.  N.  S.  290  ;  Law  J.  :A 
Corn.  P.  273;  Langdell's  Cases  on  Sales,  992,  995.     And  see  Rey- 
nolds v.  Scott,  4  Pac.  Rep.  (CaU  346,  347.    To  same  effect,  according 
to  Bennett's  Benjamin  on  Sales,  \  3'):*,  are  Gabarron  r.  Kreeft,  Law 
R.  10  Ex.  274,  281,  285,  and  Mirabita  v.  Imperial  Ottoman  Bank,  Law 


g   147  [RESERVATION   OF   CONTROL.  212 

R.  3  Ex.  D.  164,  172 ;  31  Eng.  Rep.  201,  203.  Consult,  also,  1  Corbin's 
Benjamin  on  Sales,  \  566  ;  Campbell  on  Sales,  266.  Doctrine  stated  as 
rule  of  presumption  :  2  Schouler  on  Personal  Property,  $  273,  which 
also  cites,  Key  v.  Cotesworth,  7  Ex.  5u5 ;  Langdell's  Cases  on  Sales, 
963;  Brandt  r.  Bowlby,  2  Barn.  &  Adol.  932;  Langdell's  Cases  on 
Sales,  025  ;  Wilmshurst  v.  Bowker,  2  Man.  &  G.  792  ;  7  Man.  &  G.  882  ; 
Langdell's  Cases  on  Sales,  930;  Ellershaw  v.  Magniac,  6  Ex.  570; 
Langdell's  Crises  on  Sales,  835;  Wait  v.  Baker,  2  Ex.  1;  Langdell's 
Cases  on  Sales,  942 ;  Blanchard  v.  Page,  8  Gray,  281 ;  Merchants'  X at. 
Bank  r.  Bangs,  102  Mass.  295  ;  Griffith  v.  IngJedew,  6  Serg.  &  R.  42') ; 
Marine  Bank  v.  Wright,  48  N.  Y.  1;  Ward  v.  Taylor,  56  111.  494; 
Halliday  v.  Hamilton,  11  Wall.  560. 


$  147,  Bill  of  lading  to  seller's  order.  —  As  indication 
of  intention  to  reserve  control.  The  fact  of  making  the 
bill  of  lading  deliverable  to  the  order  of  the  vendor  is, 
when  not  rebutted  by  evidence  to  the  contrary,  almost 
decisive  to  show  his  intention  *  to  reserve  the  jus  dis- 
ponendi,2  and  to  prevent  the  property  from  passing  to 
the  vendee.3  And  where  an  unpaid  vendor,  shipping 
goods  under  a  contract  of  sale,  takes  a  bill  of  lading 
making  the  goods  deliverable  to  his  order,  and  retains 
such  bill  of  lading  in  his  own  or  his  agent's  hands  for 
his  own  protection,  he  does  not  reserve  the  seller's  lien 
only,4  in  case  of  the  purchaser's  making  default  in  the 
payment  of  the  price,5  but  reserves  a  right  of  dispos- 
ing of  the  goods,  so  long,  at  least,  as  the  purchaser 
continues  in  default.6 

Proof  in  rebuttal.  But  the  prima  facie  conclusion 
that  the  vendor  reserves  the  jus  disponendi  may  be  re- 
butted by  proof  that  in  so  doing  he  acted  as  agent  for 
the  vendee,  and  did  not  intend  to  retain  control  of  the 
property;7  and  it  is  for  the  jury  to  determine,  as  a 
question  of  fact,8  what  the  real  intention  was.9 

Illustrative  cases.  And  where  the  bill  of  lading  was 
taken  to  shipper's  order,  and  sent  to  a  member  of  the 
selling  firm,  as  according  to  the  tenor  of  a  letter  re- 
ceived from  the  buyer,  it  was  feared  that  he  would  not 
accept  the  goods  at  the  price  named,  a  verdict  of  the 
jury  was  sustained  which  found  in  favor  of  the  passing  of 


213  RESERVATION  OF  CONTROL.  \   147 

the  property,  under  a  charge  that  would  require  a  dif- 
ferent result  if  the  sellers  intended  to  keep  the  goods  in 
their  own  hands  and  under  their  own  control  till  a  final 
arrangement  took  place  as  to  the  terms  of  the  bargain.10 
But  it  has  been  held  that  the  property  did  not  pass  to 
the  buyer,  even  though  the  goods  were  delivered  on 
board  a  vessel  chartered  by  him,  if,  as  the  jury  found, 
it  was  the  seller's  intention  to  retain  the  property  until 
his  agent  in  the  city,  which  was  the  destination  of  the 
goods,  should  receive  the  cash  against  the  bill  of  lading, 
as  indicated  by  the  seller's  retention  of  one  of  the  bills 
of  lading,  which  was  alone  stamped,  and  which  he  sent 
to  his  agent,  while  sending  another  to  the  buyer,  with 
invoice  and  letter  of  advice.11 

Statement  of  governing  doctrine.    The  doctrine  gov- 
!  erning  in  this  regard  has  been  laid  down  in  this  coun- 
try to  be  that  where  a  bill  of  lading  has  been  taken, 
i  containing  a  stipulation  that  the  goods  shipped  shall  be 
delivered  to  the  order  of  the  shipper,  or  to  some  person 
|  designated  by  him  other  than  the  one  on  whose  account 
I  they  have  been  shipped,  the  inference  that  it  was  not 
intended  that  the  property  in  the  goods  should  pass, 
except  by  subsequent  order  of  the  person  holding  the 
I  bill,  may  be  rebutted,  though  it  is  held  to  be  almost 
I  conclusive  ; 12  and  where  there  are  circumstances  point- 
ing both  ways,  some  indicating  an  intent  to  pass  the 
ownership  immediately,   notwithstanding  the  bill    of 
lading,  or  in  other  words,  where  there  is  anything  to 
rebut  the  effect  of  the  bill,  it  becomes  a  question  for 
the  jury  whether  the  property  has  passed.13 

1  Determination    of   intention  :  See   Merchants'    Nat.  Bank  v. 
I  Bangs,  102  Mass.  291,  295.    See  section  oil  EVIDENCE  OF  INTENTION. 

2  See  citations  in  next  note.    Restrictive  receipt  for  the  purpose 
of  giving  the  shipper  command  of  the  goods:   Craven  v.  Ryder,  6 
Taunt.  433.    And  see  Ruck  v.  Hatfield,  5  Barn.  &  Aid.  632. 

3  See  First  Nat.  Bank  v.  Crocker,  111  Mass.  163, 167 ;  Dows  v.  Nat. 
Exchange  Bank,  91  U.  S.  618,  631 ;  Reynolds  v.  Scott,  4  Pac.  Rep. 


#   148  RESERVATION   OF   CONTROL.  214 

(Cal.)  346, 347  ;  quoting,  Bennett's  Benjamin  on  Sales,  ?  399,  which  cites 
following  cases:  Wilmshurst  v.  Bowker,  2  Man.  &  G.  792  ;  7  Man.  <fe 
G.  882 ;  Langdell's  Cases  on  Sales,  9UO  ;  Ellershaw  v.  Magniac,  6  Ex. 
570  ;  Langdell's  Cases  on  Sales,  805  ;  Wait  v.  Baker,  2  Ex.  1 ;  Lang- 
cleil's  Cases  on  Sales,  942;  Jenkyns  v.  Brown,  14  Q.  B.  496  ;  19  Law  J. 
Q.  B.  233  ;  Langdell's  Cases  on  Sales,  948  ;  Shepherd  r.  Harrison.  Law 
II.  4  Q.  B.  196,493;  5  Eng.  App.  116;  Langdell's  Cases  on  Sales,  996; 
Gabarron  v.  Kreeft,  Law  K,  10  Ex.  474  ;  Oggr.  Shuter,  Law  R.  1  C.  P 
I).  47  ;  Ex  parte  Banner,  Law  R.  2  Ch.  J).  78,  and  Mason  r.  Great 
Wost.  Ry.  Co.  31  Up.  Can.  Q.  B.  73.  Consult  1  Corbin's  Benjamin  on 
S'lli-s.  \  5f>7.  And  compare  Emery's  Sons  v.  Irving  Nat.  Bank,  25 
Ohio  St.  S60,  3G5. 

4  Seller's  lien  :  See  subsequent  chapter  of  book. 

5  Payment :  See  subsequent  chapter  of  book. 

6  Ogg  v.  Shuter,  Law  R.  1  C.  P.  D.  47  ;  reversing  same  case,  Law 


7  See  citations  in  succeeding  notes.    And  consult,  2  Schouler  on 
Personal  Property,  \  273,  p.  260  ;  1  Corbin's  Benjamin  on  Sales,  579. 

8  See  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  2D5. 

9  Bennett's  Benjamin  on  Sales,  §  399,  n.  if  I  Corbin's  Benjamin 
on  Sales,  ?  568  ;  citing,  Van  Casteel  v.  Booker,  2  Ex.  691  ;  Browne  v. 
Hare,  4  Hurl.  &  N.  822 ;  2:)  Law  J.  Ex.  6;  Langdell's  Cases  on  Sales, 
976;  Joyce  v.  Swan,  17  Com.  B.  N.  S.  84;  Moakes  v.  Nicholson,  19 
Com.  B.  N.  S.  290 ;  34  Law  J.  Com.  P.  273  ;  Langdell's  Cases  on  Sales, 
992. 

10  Joyce  v.  Swan,  17  Com.  B.  N.  S.  84. 

11  Moakes  v.  Nicholson,  19  Com.  B.  N.  S.  290  ;  34  Law  J.  Com.  P. 
273  ;  Langdell's  Cases  on  Sales,  9^)2,  905. 

12  Dows  v.  Nat.  Exchange  Bank,  91  U.  S.  633. 

13  Dows  v.  Nat.  Exchange  Bank,  91  U.  S.  633  ;  quoted,  Bennett's 
Benjamin  on  Sales,  $  399,  n.  I,  p.  431. 

\  148.  Delivery  on  board  buyer's  vessel.  —  Restraining 
effect  of.  Although  as  a  general  rule  the  delivery  of 
goods  by  the  vendor  on  board  the  purchaser's  own 
vessel  is  a  delivery  to  the  purchaser,  and  passes  the 
property,1  yet  the  vendor  may  by  special  terms  re- 
strain the  effect  of  such  delivery,  and  reserve  the  jus 
disponendi,2  even  in  cases  where  the  bills  of  lading  show 
that  the  goods  are  free  of  freight3  because  owner's 
property.4 

Goods  not  appropriated  before  shipment.  And  on  a 
sale  of  goods  not  specific,  although  the  goods  have  been 
delivered  on  board  a  ship  of  the  purchaser,  or  one 
chartered  for  him,  yet  in  the  absence  of  any  appropria- 


215  RESERVATION  OP  CONTROL.  §    149 

tion  of  the  goods  in  fulfillment  of  the  contract  previous 
to  shipment,  the  fact  that  the  vendor  has  taken  a  bill 
of  lading,  making  the  goods  deliverable  to  his  own 
order,  or  that  of  a  third  person,  will  prevent  the  prop- 
erty in  them  from  passing  to  the  purchaser.5 

1  See  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  R.  3  Ex.  D. 
164,  172  ;  30  Eng.  Rep.  201,  208.    S^e  section  on  RESERVATION  OF  CON- 
TROL IN  GENERAL.    Transfer  of  title  generally  :  See  next  chapter. 

2  Retention  of  jus   dteponendi:  See   Merchants'  Nat.  Bank  v. 
Bangs,  102  Mass.  291,  295. 

3  See  Van  Casteel  v.  Booker,  2  Ex.  691 ;  Turner  v.  Liverpool  Dock 
Trustees,  16  Ex.  513 ;  Langdell's  Cases  on  Sales,  952. 

4  Bennett's  Benjamin  on  Sales,  §  399,  n.  &;  1  Corbin's  Benjamin 
on  Sales,  \  56i),  n.  cj ;  citing,  Turner  v.  Liverpool  Dock  Trustees,  6  Ex. 
543  ;  Langdell's  Cases  on  Sales,  952  ;  Ellershaw  v.  Magniac,  6  Ex.  570  ; 
Langdell's  Cases  on  Sales,  835 ;  Brandt  v.  Bowlby,  2  Barn.  &  Adol. 
932;  Langdell's  Cases  on  Sales,  925;  Van  Casteel  v.  Booker,  2  Ex. 
691  ;  Moakes  v.  Nicholson,  19  Com.  B.  N.  S.  2:M) ;  Law  J.  34  Com.  P 
146  ;  Langdell's  Cases  on  Sales,  990,  905 ;  Schotsman  ?;.  Lancashire  etc. 
Ry.  Co.  Law  R.  2  Ch.  332  ;  Gumm  v.  Tyrie,  Law  J.  33  Q.  B.  97  ;  Law  J. 
34  Q.  B.  124.    Compare  Campbell  on  Sales,  266 ;  2  Schouler  on  Per- 
sonal Property,  §  273,  p.  260. 

5  Gabarron  v.  Kreeft,  Law  R.  10  Ex.  274, 

$  149,  Disposition,  of  bill  of  exchange.  —  Refusing  ac- 
ceptance. Where  a  bill  of  exchange  for  the  price  of 
goods  is  enclosed  to  the  buyer  for  acceptance,  together 
with  the  bill  of  lading,  the  buyer  cannot  retain  the  bill 
of  lading,  unless  he  accepts  the  bill  of  exchange,1  and 
if  he  refuse  acceptance  he  acquires  no  right  to  the  bill 
of  lading,  or  the  goods  of  which  it  is  the  symbol/ 
while  the  vendor  may  exercise  his  jus  disponendi  by 
selling  or  otherwise  disposing  of  the  goods,  so  long,  at 
least,  as  the  buyer  remains  in  default.3 

Mailing  to  purchaser  of  bill  of  lading  to  buyer's  order. 
But  although  the  vendor  may  intend  the  transfer  of 
the  property  to  be  conditional  upon  the  buyer's  accept- 
ance of  the  bill  of  exchange,  yet  if  he  puts  into  the  post, 
addressed  to  the  buyer,  a  bill  of  lading  making  the 
goods  deliverable  to  the  buyer's  order,  he  thereby 
abandons  all  control  over  the  goods,4  and  the  property 
thereupon  vests  unconditionally  in  the  buyer,  and  does 


$    150  RESERVATION  OF  CONTROL.  216 

not  revest  in  the  vendor  on  the  buyer's  failure  or  re- 
fusal to  accept  the  bill  of  exchange.5 

Depositing  bill  of  lading  with  discounting  bankers. 
And  when  the  vendor  deals  with  the  bill  of  lading  only 
to  secure  the  contract  price,  as  by  depositing  it  with 
bankers  who  have  discounted  the  bill  of  exchange, 
then  the  property  vests  in  the  buyer  upon  the  payment 
or  tender  by  him  of  the  contract  price.6 

General  and  special  property.  The  shipper  of  goods 
may,  however,  convey  a  special  property  in  a  cargo  by 
indorsing  the  bill  of  lading,  deliverable  to  his  own 
order,  to  the  banker  who  buys  the  bills  of  exchange, 
while  the  general  property  may  pass  to  the  buyers  of 
the  cargo  by  sending  them  invoices  and  letters  of  advice, 
showing  that  the  cargo  was  bought  and  shipped  on 
their  account.7 

1  See  citations  in  next  note. 

2  See  Shepherd  v.  Harrison,  4  Q.  B.  196, 493 ;  Law  K.  5  H.  L.  116  : 
Langdell's  Cases  on  Sales,  996;  Ogg  v.  Shuter,  Law  R.  1  C.  P.  I).  47  ; 
reversing  same  case,  Law  R.  10  Com.  P.  159  ;  Bennett's  Benjamin  on 
Sales,  §  399,  whence  paragraph  derived,  and  n.  lt  citing  these  Eng- 
lish  and  following  American  cases:  Clark  v.  Bank  of    Montreal, 
13  Grant  (Ont.)  211 ;  First  Nat.  Bank  v.  Dearborn,  115  Mass.  222  ;  Fifth 
National  Bank  v.  Bayley,  115  Mass.  228,  230 ;  Alderman  v.  Eastern 
R.  R.  Co.  115  Mass.  233  ;  Bank  of  Rochester  v.  Jones,  4  Comst.  -497, 
502  ;  Winter  v.  Coit,  3  Seld.  288  ;  Marine  Bank  v.  Wright,  48  N.  Y.  1  ; 
Millar  v.  Sav.  Assoc.  3  Week.  N.  Cas.  4SO ;  Taylor  v.  Turner,  87  111.  2% ; 
C'obb  v.  111.  Cent.  R.  R.  Co.  88  111.  394.    Consult,  also,  2  Schouler  on 
Personal  Property,  §  274. 

3  See  O?g  v.  Shuter,  Law  R.  1  C.  P.  D.  47  ;  reversing  same  case, 
Law  R.  10  Com.  P.  159.    See  Campbell  on  Sales,  265. 

4  See  citations  in  next  note. 

5  See  Ex  parte  Banner,  Law  R.  2  Ch.  D.  78;  as  cited,  Bennett's 
Benjamin  on  Sales,  309,  n.  n;  1  Corbin's  Benjamin  on  Sales,  §  571,  n. 
e  ;  distinguishing,  Shepherd  v.  Harrison,  Law  R.  4  Q,.  B.  196,493  ;  Law 
R.  5  H.  L.  116 ;  Langdell's  Cases  on  Sales,  996. 

6  Mirabita  v.  The  Imperial  Ottoman  Bank,  Law  B.  3  Ex.  D. 
6-1 ;   31  Eng.  Rep.  201 ;  determining  a  point  left  undecided  in  Ogg  v. 
Shuter,  Law  R.  1  C.  P.  D.  47, 51.  See  Bennett's  Benjamin  on  Sales,  §  399, 
n.  o;  and  1  Corbin's  Benjamin  on  Sales,  §572,  so  stating  this  case. 
And  consult  Campbell  on  Sales,  265. 

7  Jenkyns  v.  Brown,  14  Q.  B.  496  ;  Langdell's  Cases  on  Sales,  948, 951. 

g  150.  Transmission  to  buyer  of  indorsed  bill  of  lading. 
—  Question  of  seller's  intention.  If  the  shipper  of  goods 


217  RESERVATION  OF  CONTROL.  §   150 

from  abroad  takes  the  bill  of  lading  to  his  own  order, 
or  to  blank  order,  which  is  practically  the  same  thing, 
and  immediatety  indorses  it  and  sends  it  to  the  con- 
signee, it  is  presumed,  if  consistent  with  the  contract 
and  other  circumstances,  that  he  intended  the  same 
thing  as  if  he  had  taken  the  bill  of  lading  in  the  name 
of  the  consignee  at  once.1  In  such  cases  it  has  been 
left  to  the  jury  to  finally  decide,  as  a  question  of  fact, 
what  was  the  intention  of  the  vendor  under  all  the  cir- 
cumstances of  the  case.2 

Goods  deliverable  to  consignor's  order.  And  this 
course  has  been  sustained  where  the  bill  of  lading 
made  the  goods  "to  be  delivered  to  the  order  of  the 
consignor,"  and  he  indorsed  it  to  the  order  of  the  con- 
signee and  sent  it  to  his  agent  for  the  consignee,  as  this 
mode  of  taking  the  bill  of  lading  did  not  necessarily 
prevent  the  property  from  passing.3  The  question  was 
regarded  as  one  of  fact,  and  the  jury  was  considered  to 
have  disposed  of  it  and  to  have  determined  that  it  wras 
the  intention  of  the  consignor  to  ship  the  goods  in  per- 
formance of  his  contract  to  place  them  "  free  on  board," 
and  not  to  have  had  the  bill  of  lading  taken  in  this  form 
for  the  purpose  of  retaining  a  control  over  the  goods 
and  continuing  to  be  owner,  contrary  to  the  contract.4 

Remittance  of  draft  requested.  Nor  does  the  fact  that 
the  bill  of  lading,  deliverable  to  shipper's  order  and  in- 
dorsed in  blank,  is  sent  to  the  buyer  in  a  letter  request- 
ing a  remittance  of  a  draft  for  the  price,  necessarily 
render  such  remittance  a  condition  precedent  to  the 
vesting  of  the  property  in  the  buyer,  against  whom  the 
right  of  stoppage  in  transitu  is  sought  to  be  asserted.5 

Undelivered  bill  of  lading  in  buyer's  name.    But  the 
fact  that  the  bill  of  lading  is  taken  in  the  buyer's  name, 
if  it  is  not  delivered,  creates  no  presumption  of  an  in- 
tention to  transfer  the  property  unconditionally.6 
NEWMABK  SALES.  — 19. 


§§    151-152  RESERVATION   OF  CONTROL.  218 

1  Campbell  on  Sales,  266  ;  citing,  Wai  ley  r.  Montgomery,  3  East, 
585  ;  LangdelPs  Cases  on  Sales,  911 ;  Van  Casteel  v.  Booker,  2  Ex.  6»1  ; 
Browne  v.  Hare,  4  Hurl.  &  N.  822  ;  29  Law  J.  Ex.  6 ;  Langdell's  Cases 
on  Sales,  976. 

2  See  Van  Casteel  v.  Booker,  2  Ex.  691 :  Browne  v.  Hare,  4  Hurl. 
&  N.  822  ;  2:)  Law  J.  Ex.  6 ;  Langdell's  Cases  on  Sales,  976 ;  Bennett's 
Benjamin  on  Sales,  §  395  ;  1  Corbin's  Benjamin  on  Sales,  \  556. 

3  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  &  N.  822 :  Langdell's 
Cases  on  Sales,  976,  989. 

4  Browne  v.  Hare,  3  Hurl.  &  N.  484  ;  4  Hurl.  *  N.  822  ;  Langdell's 
Cases  on  Sales,  976,  989.    As  in  the  case  of  Wait  r.  Baker,  2  Ex.  1 ; 
Langdell's  Cases  on  Sales,  942.    And  as  is  explained  in  Turner  ?'. 
Liverpool  Dock  Trustees,  6  Ex.  54:5;  Langdell's  Cases  on  Sales,  952. 
And  in  Van  Casteel  v.  Booker,  2  Ex.  691. 

5  Wilmshurst  ?'.  Bowker,  2  Man.  &  G.  792  ;  7  Man.  &  G.  882 ;  Lang- 
dell's Cases  on  Sales,  930,  941. 

6  Sheridan  ?>.  New  Quay  Co.  4  Com.  B.  N.  S.  618  ;  as  noted,  Camp- 
bell on  Sales,  267. 

\  151.  Transmission  to  secure  advances.  —  As  evidence  of 
appropriation,  etc.  It  has  been  laid  down  that  when 
bills  of  lading  to  shipper's  order,  or  to order,  in- 
dorsed, or  by  which  goods  are  made  deliverable  to  a 
consignee  by  name,  are  transmitted  to  him  as  security 
for  antecedent  advances,  they  are  evidence  of  such  a 
destination  and  appropriation  to  him  of  the  specific 
goods  as  will  vest  in  him  a  property,  absolute  or  special 
in  them,  at  the  time  of  their  delivery  on  board  ; l  and  this 
statement  seems  to  be  supported2  by  the  American  cases.3 

General  indebtedness  of  consignor.  But  there  is  a 
recognized  distinction  if  the  consignor  be  simply  gen- 
erally indebted  to  the  consignee.4 

1  Abb.  Shipp.  (5th  Am.  ed.)  p.  410. 

2  According  to  Bennett's  Benjamin  on  Sales,  \  399,  n.  1. 

3  See  Grosvenor  v.  Phillips,  2  Hill,  147  ;  Bailey  r.  Hudson  R.  R. 
Co.  49  N.  Y.  70  ;  Schumacher  v.  Eby,  24  Pa.  St.  521  ;  Straus  v.  VVessel, 
30  Ohio  St.  211 ;  Nelson  v.  Chicago  etc.  R.  R.  Co.  2  111.  App.  180. 

4  See  Elliot  r.  Bradley,  23  Vt.  217;  Grosvenor  r.  Phillips,  2  Hill, 
147  ;  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497;  Redd  v.  Bunus,  58  Ga. 
574  ;  Nelson  v.  Chicago  etc.  R.  R.  Co.  2  111.  App.  180  ;  Hodges  v.  Kim- 
ball,  49  Iowa,  579  ;  Saunders  v.  Bartlett,  12  Heisk.  316  ;  Oliver  ?'.  Moore, 
12  Heisk.  482  :  Bennett's  Benjamin  on  Sales,  £  399,  n.  l,  so  citing  these 
cases;  quoting,  Frechette  v.  Corbet,  5  Low.  Can.  211,  and  referring  to 
Marine  Bank  of  Chicago  v.  Wright,  48  N.  Y.  1. 

$  152,  Seller's  transmission  to  agent  of  bill  of  lading,  etc. 
— Resumption  of  condition  cf  acceptance  of  bill  of  ex- 


219  RESERVATION  OF  CONTROL.  §   152 

change.  If  the  shipper  from  abroad  takes  the  bill  of 
lading  to  shipper's  order,  and  sends  it  indorsed  to  his 
own  distant  agent,  and  the  latter  sends  it  to  the  buyer 
in  the  same  country  in  a  letter  enclosing  a  bill  of  ex- 
change, and  requesting  that  the  same  be  returned  ac- 
cepted, the  presumption,  founded  on  mercantile  usage, 
is  that  the  acceptance  of  the  bill  of  exchange  is  a  condi- 
tion precedent  to  the  vesting  in  the  buyer  of  the 
right  of  property  and  possession  under  the  bill  of 
lading.1 

Effect  of  different  course.  For  it  has  been  declared  to 
be  perfectly  well  settled  that  if  a  consignor  in  such  a 
case  wishes  to  prevent  the  property  in  the  goods,  and 
the  right  to  deal  with  the  goods  while  at  sea,  from 
passing  to  the  consignee,  he  must  by  the  bill  of  lading 
make  the  goods  deliverable  to  his  own  order,  and  for- 
ward the  bill  of  lading  to  an  agent  of  his  own.2  And  if 
he  does  not  do  that,  though  he  still  retains  the  right  of 
stopping  the  goods  in  transitu?  yet  subject  to  that  right 
the  property  in  the  goods  and  the  right  to  the  posses- 
sion of  the  goods  is  in  the  consignee.4 

When  title  passes.  But  the  property  passes  if  the  bill 
of  lading  is  taken  deliverable  to  the  buyer  or  his  agent, 
and  sent  directly  to  either  of  them,  in  a  letter  advising 
of  the  drawing  of  drafts  on  the  buyer,5  or  even,  as  it 
has  been  held,  if  the  bill  of  lading,  deliverable  to  the 
seller's  order,  is  sent  unindorsed  to  the  buyers,  and 
another  bill  of  lading  of  the  same  set  is  sent  by  the 
sellers  to  a  third  party  indorsed,  for  the  purpose  of  se- 
curing the  amount  of  their  bill  upon  the  buyers:6 
though  it  is  otherwise  if  the  letter  enclosing  an  unin- 
dorsed bill  of  lading  to  the  buyer  refers  to  an  indorsed 
bill  sent  by  the  seller  to  his  agent.7 

1  Campbell  on  Sales.  267.  See  Shepherd  ?-.  Harrison,  Law  R.  4 
Q.  B.  1%,  4i»3;  Law  R.  s  H.  L.  116;  Lansdell's  Cases  on  Sales,  996. 
And  compare  Ogg  v.  Shuter,  Law  R.  1  C.  P.  I).  47. 


152 


RESERVATION  OF  CONTROL. 


220 


x  pare  anner,  Law  .  .  .  ,  ;  sngusng,  ep- 
herd v.  Harrison,  Law  R.  4  Q.  B.  196,  493  ;  Law  R.  5  H.  L.  116  ;  Lang- 
dell's  Cases  on  Sales,  996.  And  see  Key  r.  Cotesworth.  7  Ex.  595; 
Langdell's  Cases  on  Sales,  963,  960. 

3  Stoppage  intransitu:  See  subsequent  chapter  on  subject. 

4  Ex  parte  Banner,  Law  R.  2  Ch.  D.  278,  288. 

5  See  Key  v.  Cotesworth,  7  Ex.  505 ;  Langdell's  Cases  on  Sales, 
963  ;  Ex  parte  Banner,  Law  R.  2  Ch.  D.  278. 

6  Coxe  v.  Harden,  4  East,  211 ;  Langdell's  Cases  on  Sales,  916. 

7  Brandt  v.  Bowlby,  2  Barn.  <fe  Adol.  925 ;  Langdell's  Cases  on 
Sales,  925. 


(UM 
^0Bfi> 


221  TRANSFEK  OF  TITLE.  §  153 


CHAPTER   XIII. 

TRANSFER  OF  TITLE. 

2  153.  In  general 

2  154.  Contract  or  conveyance. 

2  155.  Intention  to  pass  title. 

\  156.  Intention  governs. 

g  157.  Sufficiency  of  intention. 

1  158.  Without  payment  or  delivery. 

2  159.  Right  of  possession. 
\  160.  Change  of  risk. 

2  161.  Title  and  risk. 

\  162.  Assumption  of  risk. 

2  163.  Stipulations  concerning  risk,  delivery,  and  payment 

\  164.  Title  to  undelivered  chattel. 

2  165.  Delivery  sufficient  to  pass  title. 

2  166.  Delivery  as  prerequisite  to  transfer  of  title. 

2  167.  When  delivery  not  such  prerequisite. 

2  163.  Estoppel  of  seller. 

2  169.  Estoppehof  warehouseman,  etc. 

§153.  In  general.  —  Importance  of  determining -.  The 
transfer  of  the  property  in  the  thing  sold  is  the  primary 
object  of  a  sale,  and  it  is  often  necessary  to  inquire 
whether  the  property  has  been  actually  transferred,  or  is 
only  intended  to  be  transferred  at  some  future  period.1 

Cash  sale  at  store  counter.  In  considering  the  point 
in  a  transaction  amounting  to  a  contract  of  sale,  at 
which  a  transfer  of  title  takes  place  from  seller  to 
buyer,  with  a  change  of  the  rights  and  responsibilities 
of  ownership,  no  difficulty  is  met  in  the  simple  case  of 
a  cash  sale  made  at  a  store  counter,  where  the  customer 
enters,  selects  his  goods,  and  carries  them  away.2 

Circumstances  complicating  point  of  transition.  But 
the  determination  of  the  point  of  transition  becomes 
more  complicated  under  the  various  circumstances 


§154  TRANSFER  OF  TITLE.  222 

which  may  attend  a  sale,  for  there  may  be  a  sale  on 
credit,  the  customer  receiving  his  goods  under  an  un- 
derstanding to  defer  payment,3  or  the  customer  may 
have  paid  on  the  spot,  with  the  understanding  that  the 
goods  should  be  sent  to  his  address  ;  or  a  bargain  may 
have  been  struck  and  nothing  said  concerning  payment 
of  price  and  delivery.4 

Uncertainty  concerning  thing  sold.  So  the  terms  of 
the  purchase  may  have  contemplated  some  further  act 
on  the  part  of  buyer  or  seller,  or  a  third  person,  such 
as  weighing,  counting,  or  measuring  the  goods  ; 5  or,  to 
make  the  question  still  more  intricate,  a  contract  might 
relate  to  goods  which  have  as  yet  no  existence,  but 
must  be  manufactured  to  order ; 6  or  which,  being  al- 
ready in  being  as  part  of  a  lump  or  mass,  must  be  sep- 
arated and  set  apart7  before  there  can  be  identical  and 
specific  property  for  the  sale  to  operate  upon.8 

1  Campbell  on  Sales,  225.    This  inquiry  becomes  important  in 
questions  arising  out  of  the  accidental  destruction  of  the  subject- 
matter  of  the  sale,  and  in  questions  arising  out  of  the  insolvency  of 
one  of  the  parties,  and  was  formerly  of  consequence  in  regard  to  the 
form    of   pleading:  Campbell    on    Sales,  225.    And    see    Graham's 
Blackburn  on  Sales,  Introd.  VII. 

2  See  2  Schouler  on  Personal  Property,  ?  235.    In  such  a  case  the 
buyer,  as  owner  of  the  goods,  becomes  liable  for  their  loss  in  any 
manner  as  soon  as  he  has  set  foot  in  the  street,  and  has  then  the 
right  to  resell  them  at  discretion  :  2  Schouler  on  Personal  Property, 
|  235. 

3  See  Anstedt  r.  Sutter,  30  111.  164, 166. 

4  ,2  Schouler  on  Personal  Property,  2  235. 

5  See  chapter  on  SALES  OF  SPECIFIED  CHATTELS. 

6  See  Cunningham  v.  Ashbrook,  20  Mo.  553,  557 ;  also  see  chapter 
on  SALES  OF  MANUFACTURED  CHATTELS. 

7  See  Cunningham  v.  Ashbrook,  20  Mo.  553,  557  ;  also  see  chapter 
on  SALES  OF  UXSPECIFIED  CHATTELS. 

8  2  Schouler  on  Personal  Property,  \  235.    See  chapter  on  EXECU- 
TORY SALES. 

§  154,  Contract  or  conveyance.  —  Bargain  and  sale,  or 
executory  agreement.  In  a  bargain  and  sale  the  thing 
which  is  the  subject  of  the  contract  becomes  the  prop- 
perty  of  the  buyer  the  moment  the  contract  is  con- 


223  TRANSFER  OF  TITLE.  §    155 

eluded,  and  without  regard  to  the  fact  whether  the 
goods  be  delivered  to  the  buyer  or  remain  in  possession 
of  the  vendor;1  but  in  an  executory  agreement  the 
goods  remain  the  property  of  the  vendor  till  the  con- 
tract is  executed.2  And  the  distinction  between  the 
two  transactions  in  this  respect  has  been  developed  by 
considering  the  latter  as  a  contract,  and  the  former  as 
also  a  conveyance.3 

Privilege  of  repurchase.  Where  the  party  purchasing 
expressiy  declared  that  he  would  not  take  a  mortgage, 
but  must  have  a  sale  of  the  property  to  himself,  and  a 
bill  of  sale  was  written  and  signed,  and  the  property 
was  delivered  to  the  vendee,  and  taken  possession  of 
by  him,  and  no  acts  of  ownership  afterwards  exercised 
by  the  vendor  over  it,  but  the  latter  had  the  privilege 
conceded  to  him  that  if  he  would  pay  at  a  cer- 
tain time  a  certain  price  for  the  property  he  might 
purchase  it,  it  has  been  held  that  that  was  the  full 
extent  of  his  rights,4  and  that  the  title  vested  in  the 
purchaser.5 

1  See  §  158,  on  TRANSFER  OF  TITLE  WITHOUT   PAYMENT   OB 
DELIVERY. 

2  Bennett's  Benjamin  on  Sales,  \  .308,  n.  b,  citing1  following  cases : 
Ohiey  v.  Howe,  89  Til.  556 ;  Straus  v.  Ross,  25  Ind.  300 ;  Lester  v.  East. 
49  Ind.  588,  592  ;  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165  ;  Cardinell  v. 
Bonnett,  52  Cal.  476 ;  The  Elgee  Cotton  Cases,  22  Wall.  180. 

3  See  Campbell  on  Sales,  2  ;  Graham's  Blackburn  on  Sales,  243. 

4  Cook  v.  Lion  Fire  Ins.  Co.  7  Pac.  Rep.  784 ;  Sup.  Ct.  Cal.  August 
26, 1885. 

5  Cook  v.  Lion  Firo  Ins.  Co.  7  Pac.  Rep.  784.    See  Jones  on  Mort- 
gages. §  326  ;  Hoopes  v.  Bailey,  28  Miss.  328. 

§  155,  Intention  to  pass  title. — Express  or  presumed 
intention.  The  inquiry  as  to  the  point  of  time  when 
the  property  is  transferred  depends  on  the  intention, 
expressed  or  presumed,  of  the  parties  to  the  sale.1  And 
it  has  been  suggested  that  there  is  a  certain  bias  against 
the  presumed  intention  of  complete  transfer,  traceable 
in  various  reported  decisions,2  wherever  the  natural 


§  156  TRANSFER  OF  TITLE.  224: 

result  of  litigation  would  be  to  give  the  buyer  the 
benefit  of  goods  for  which  he  can  never  pay.3 

Distinct  manifestation  of  intention.  But  there  can  be 
no  question  when  the  intention  is  clearly  and  unequivo- 
cally manifested,4  as  where  a  seller  expressly  reserves 
title  until  the  whole  price  shall  be  paid.5 

1  Campbell  on  Sales,  225.    The  question  is  rather  one  of  intention 
than  of  strict  law,  the  general  rule  being  that  the  agreement  is  just 
what  the  parties  intended  to  make  it,  if  the  intent  can  be  collected 
from  the  language  employed,  the  subject-matter,  and  the  attendant 
circumstances:   Hatch  r.  Oil  Co.  100  U.  S.  124,  131.    And  see  Terry  v. 
Wheeler,  25  N.  Y.  520, 525  ;  Langdell's  Cases  on  Sales,  706  ;  Catlaghan 
v.  Meyers,  89  111.  5Gfi,  570 ;  Sewell  v.  Eaton,  6  Wis.  490. 

2  See  Simmons  v.  Swift,  5  Barn.  &  C.  857 ;   Langdell's  Cases  on 
Sales,  G5D  ;  referring  to  Hanson  v.  Meyer,  6  East,  614;  Langdell's  Cases 
on  Sales,  639  ;  Haldeman  v.  Duncan,  51  Pa.  St.  66. 

3  2  Schouler  on  Personal  Property,  ?  236.    Or  leave  the  seller  to 
enjoy  the  purchase  money  advanced  for  goods  which  he  has  never 
delivered :  2  Schouler  on  Personal  Property,  £  236. 

4  1  Corbin's  Benjamin  on  Sales,  \  309,  n.  2. 

5  Weed  v.  Boston  etc.  Ice  Co.  12  Allen,  377. 

§  158.  Intention  governs,  —  In  general.  Whether  the 
title  to  the  property,  upon  an  agreement  for  a  sale 
thereof,  passes  or  not,  depends1  upon  the  intention  of 
the  parties  to  the  agreement ; 2  nor  does  the  rule  in  re- 
gard to  something  remaining  to  be  done3  apply  if  the 
parties  have  made  it  sufficiently  clear  whether  or  not 
they  intend  that  the  property  shall  pass  at  once,4  as 
their  intention  must  be  looked  at  in  every  case.5 

Province  of  court  and  jury.  And  this  intent  is  to  be 
determined  by  the  jury,6  unless  it  is  plain  as  matter  of 
law  that  the  evidence  will  justify  a  finding  but  one 
way.7  Thus,  where  the  owner  of  wheat  stacked  upon 
his  premises  at  three  different  places  made  a  contract 
with  one  who  saw  the  wheat  at  two  of  such  places, 
whereby  the  former,  at  some  subsequent  time,  was  to 
thresh  the  wheat,  and  retain  from  seventy-five  to  one 
hundred  bushels  thereof,  and  transport  the  remainder 
to  a  town  where  it  was  to  be  weighed,  and  then  to  an- 


225  TRANSFER  OF  TITLE.  §  156 

other  town,  where  it  was  to  be  delivered  and  paid  for 
at  a  specified  rate  per  bushel,  a  portion  of  the  purchase 
money  being  paid  at  the  time  the  original  contract  was 
made,  it  was  held  that  it  cannot  be  said,  as  a  matter  of 
law,  that  the  title  to  the  wheat,  or  to  any  portion 
thereof,  was  immediately  transferred  from  the  one 
party  to  the  other,  but  the  question  was  for  the 
jury.8 

Ascertainment  and  manifestation.  But  this  intention 
as  to  the  time  when  the  title  is  to  pass  can  be  ascer- 
tained only  from  the  terms  of  the  agreement  as  ex- 
pressed in  the  language  and  conduct  of  the  parties, 
and  as  applied  to  known  usage  and  the  subject-matter ; 9 
and  it  must  be  manifested  at  the  time  the  bargain  is 
made ; 10  while  the  point  to  be  ascertained  is  whether 
the  negotiations  and  acts  of  the  parties  are  evincive  of 
an  intention  on  the  part  of  the  seller  to  relinquish  all 
further  claim  or  contract  as  owner,  and  on  the  part  of 
the  buyer  to  assume  such  control  with  its  consequent 
liabilities.11 

1  According  to  Bennett's  Benjamin  on  Sales,  \  311,  n.  <7,  source  of 
statements  and  citations  in  succeeding  paragraphs,  except  Caywood 
v.  Timmons,  31  Kan.  394. 

2  See  following  cases  :  Me.  —  Stone  v.  Peacock,  35  Mo.  383  ;  Dyer 
v.  Libby,  61  Me.  45.     Vt.  —  Bellows  v.  Wells,  36  Vt.  5j:> ;  Fitch  v.  Burk, 
38  Vt.  689.    N.  H.  —  Fuller  v.  Bean,  34  N.  H.  290  ;  Ockinton  v.  Rickey, 
41  N.  H.  279,  280 ;  Kelsea  v.  Haines,  41  N.  H.  346,  35'5 ;  Prescott  v. 
Locke,  51  N.  H.  101,  102,  103.    Mags.  —  Sumner  v.  Hamlet,  12  Pick. 
76,  82  ;   Macomber  v.  Parker,  13  Pick.  182, 183 ;   Morse  v.  Sherman, 
106  Mass.  433  ;   Dugan  v.  Nichols,  125   Mass.   73.      Conn.  —  Chapman 
v.  Shepherd,  25  Conn.  413.    N.   F.  — Russell  v.  Carrington,  42  N.  Y. 
118;  1   Am.  Rep.  498;  Kurd  v.  Cook,  75  N.  Y.  45-1.     Mo.  —  Cunning- 
ham  v.  Ashbrook,  20  Mo.  553.     Mich.  —  Wilkinson  r.  Holliday,  33 
Mich.  386.    Ind.  —  Lester  ?>.  East,  49  Ind.  589,  and  cases  cited.    Ertft.  — 
Ogg  v.  Shuter,  Law  R.  10  Com.  P.  450.     Can.  —  Gleason  i\  Knapp,  26 
Up.  Can.  C.  P.  553  ;  Ross  v.  Eby,  28  Tip.  Can.  C.  P.  3ifi.    New  Brims.  — 
Sprague  v.  King,  1  Pugs.  &  B.  299 ;   Gibson  v.  McKean,  3    Pugs. 
299. 

3  See  section  on  subject  under  chapter  on  EXECUTORY  SALES.  , 

4  See  citations  in  next  note. 

5  Turley  v.  Bates,  2  Hurl.  &  C.  200,  211 ;  Langdell's  Cases  on  Sales, 
692  ;  Logan  v.  Le  Mesurier,  11  Moore  P.  C.  C.  116 ;  Langdell's  Cases  on 
Sales,  681 ;  Wilkinson  v.  Holiday,  33  Mich.  386. 


g    157  TRANSFER  OF  TITLE.  228 

6  Me.  —  George  v.  Stubbs,  26  Me.  250;   Dyer  v.  Libby,  61  Me.  45. 
2T.  H.  —  Fuller  v.  Bean,  34  N.  II.  290  ;  Kelsea  v.  Halnos,  41  N.  H.  253. 
Mass  —Kiddle  v.  Varnum,  20  Pick.  283;  Merchants'  Nat.  Bank  v. 
Bangs,  103  Mass.  2  )1  ;  Marble  v.  Moore,  102  Mass.  443.    JV.  Y.  —  Kidder 
v.  McKnight,  13  Johns.  204.    Iowa  —  McClurg  v.  Kelly,  21  Iowa,  508. 

7  Merchants'  Nat.  Bank  v.  Bangs,  102  Mass.  291,  296 ;  Wigton  v. 
Bowley,  130  Mass.  254. 

8  Caywood  v.  Tiraraons,  31  Kan.  394.    And  hence  it  was  erroneous 
for  the  court  to  give  instructions  upon  the  theory  that  the  original 
contract  between  the  parties  constituted  a  fully  completed  sale  of  the 
wheat  whereby  the  property  immediately  passed  to  the  purchasers, 
and  that  the  latter  took  all  the  risk  of  loss  or  damage  which  might 
result  from  rains  or  storms  or  other  casualties :  Caywood  v .  Tim- 
mons,  31  Kan.  394. 

9  See  citations  in  next  note. 

10  Foster  v.  Ropes,  111  Mass.  10  ;  Lingham  v.  Eggleston,  27  Mich. 

11  Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  18.    And  see  Denny  v. 
Williams,  5  Allen,  3,  4  ;  Barretts.  Goddard,  3  Mason,  113. 

$  157.  Sufficiency  of  intention.  —  Meeting  of  minds,  etc. 
Whether  or  not,  and  when  the  legal  tillo  in  property 
sold  passes  from  the  vendor  to  the  vendee  is1  always  a 
question  of  the  intention  of  the  parties,-  which  is  to  be 
gathered  from  their  acts,  and  all  the  facts  and  circum- 
stances of  the  case  taken  together.3  In  order  that  the 
title  may  pass,  the  owner  must  intend  to  part  with  his 
property,  and  the  purchaser  to  become  the  immediate 
owner.4  Their  two  minds  must  meet  on  this  point,  and 
if  anything  remains  to  be  done  before  either  assents,  it 
may  be  an  inchoate  contract,  but  it  is  not  a  perfect 
sale.5 

Performance  or  waiver  of  condition.  Hence  when  there 
is  a  condition  precedent  attached  to  the  contract,6  the 
title  to  the  property  does  not  pass  to  the  vendee  until 
performance  or  waiver  of  the  condition,7  even  though 
there  be  an  actual  delivery  of  the  possession.8 

1  As  stated  in  preceding  section. 

2  See  Levasseur  v.  Gary,  3  Atl.  Hep.  461 ;  Sup.  Ct.  Me.  March  22, 

1886. 

3  State  v.  Four  Jugs  of  Intoxicating  Liquor,  2  Atl.  Rep.  586  ;  Sup. 
Ct.  Vt.  February  5, 1886;  State  v.  O'Xeil.  22  The  Reporter,  58;  Sup.  Ct. 
Vt.  March,  1886. 

4  Mason  v.  Thompson,  18  Pick.  305. 


227  TRANSFER  OF  TITLE.  §    158 

5  Mason  v.  Thompson,  IS  Pick.  305,  as  quoted  in  cases  cited  in 
notebel'oro  last,  which  declare  that  the  authorities  seem  to  be  uniform 
on  this  point,  and  that  and  the  acts  of  the  parties  are  regarded  as  evi- 
dence by  which  the  court  or  jury  may  ascertain  and  determine  their 
intent. 

6  Condition   precedent:    See   under   chapter   on  CONDITIONAL 
SALES. 

7  According  to  first  of  cases  cited  in  third  note  of  section. 

8  Benjamin  on  Sales,  §  320,  n.  <L    For  Vermont  cases  to  the  above 
points,  according  to  State  ?'.  Four  Jusrs  of  Intoxicating  Liquor,  2  Atl. 
Hep.  586,  see  Robert's  Digest,  610,  et  seq. 

\  158.  Without  payment  or  delivery.  —  English  state- 
ments of  the  law.  According  to  the  modern  English 
doctrine,  neither  delivery  nor  payment  of  the  purchase 
money  is  generally  requisite  for  vesting  the  title  to 
goorls  in  the  buyer  under  a  contract  of  sale  51  but  it  is 
only  necessary  that  the  identical  goods  which  are  the 
subject  of  the  contract  should  be  ascertained,  and  the 
price  fixed.2  Thus,  it  is  laid  down  that  where  a  bargain 
is  made  for  the  purchase  of  goods,  and  nothing  is  said 
about  payment  or  delivery,  the  property  passes  im- 
mediately, so  as  to  cast  upon  the  purchaser  all  further 
risk,  if  nothing  remains  to  be  done  to  the  goods.3  So  it 
is  declared  that  by  the  law  of  England*  the  sale  of  a 
specific  chattel  passes  the  property  to  the  vendee,  with- 
out delivery.5  Similarly  it  is  asserted  to  be  a  general 
rulo  of  the  common  law  that  a  mere  contract  for  the 
salo  of  goods,  where  nothing  remains  to  be  done  by  the 
seller  before  making  delivery,  transfers  the  right  of 
property,6  although  the  price  has  not  been  paid,  nor 
the  thing  sold  delivered  to  the  purchaser.7 

American  statements  of  the  law.  And  in  this  country 
it  is  stated  that  the  sale  of  a  specified  article  is  complete 
upon  the  payment  of  the  purchase  money,  without  a 
delivery,  either  actual  or  constructive  ; 8  and  that  when 
a  contract  for  the  sale  of  goods  is  completed  by  the  as- 
sent of  both  parties  the  property  in  the  goods  is  trans- 
ferred to  the  vendee,  and  the  price  is  due  to  the  vendor.9 


§    158  TRANSFER  OF  TITLE.  228 

So  a  familiar  form  of  expression  of  the  law  upon  the  sub- 
ject is  that,  when  the  terms  of  sale  are  agreed  on  and  the 
bargain  is  struck,  and  everything  that  the  seller  has  to 
do  with  the  goods  is  complete,  the  contract  of  sale  be- 
comes absolute  without  actual  payment  or  delivery, 
and  the  property  and  risk  of  accident  to  the  goods  vest 
in  the  buyer.10  Under  the  law  of  Louisiana  also,  a  con- 
tract of  sale  is  perfect,  and  the  property  is  acquired  by 
the  purchaser  as  soon  as  there  is  an  existing  agree- 
ment, even  though  there  has  been  no  delivery.11 

Payment  as  prerequisite  to  completion  of  sale.  But 
the  rule  is  said  to  be  one  of  presumption  only,12  and  ac- 
cording to  the  ancient  English  law,  payment  of  the 
price,  where  no  credit  was  given,  was  a  prerequisite  to 
the  completion  of  the  sale,13  as  is  stated  to  be  still  the 
rule  in  the  case  of  sales  for  ready  money.14 

Payment  as  condition  precedent.  And  in  this  country 
the  doctrine  seems  largely  to  prevail  that  where  chattels 
are  sold,  and  no  time  of  payment  of  the  purchase 
money  is  fixed  by  the  contract,  payment  of  the  price  is 
a  condition  precedent,15  and  the  title  would  not  vest  in 
the  vendee  until  such  condition  is  performed  by  the 
buyer,  unless  it  is  waived  by  the  seller.16  In  such  a 
case  the  sale  is  presumed  to  be  for  cash  ; 17  and  accord- 
ing to  many  of  the  cases  a  delivery  with  the  expecta- 
tion of  receiving  immediate  payment  is  not  absolute, 
but  conditional  until  payment  is  made,18  so  that  where 
there  is  no  waiver  of  payment  no  title  vests  in  the  pur- 
chaser till  the  price  is  paid.19 

Illustrative  cases.  Accordingly  in  an  action  involving 
the  title  to  a  tombstone  alleged  to  have  been  sold,  it  has 
been  held  that  the  court  should  not  have  refused  to 
charge  the  jury  that  if  the  contract  was  for  the  sale  of 
the  property,  and  no  time  of  credit  was  agreed  upon, 
then  it  was  a  cash  sale,  and  no  title  would  vest  in  the 


229  TRANSFER   OF  TITLE.  \    158 

buyer  until  she  paid  or  tendered  the  money.20  And 
where  liorse.i  were  purchased,  and  a  certain  sum  paid 
on  account,  and  upon  settlement  the  purchaser  tend- 
ered a  small  amount  of  cash  and  promissory  notes  of  a 
third  party  to  the  ordor  of  the  seller  for  the  difference, 
but  the  latter  refused  to  accept  the  notes,  alleging  that 
the  transaction  was  for  cash,  and  issued  a  writ  of  re- 
plevin for  the  horses,  ii;  was  held  that  the  purchaser 
was  not  entitled  to  the  possession  of  the  horses  until  he 
paid  for  thorn,  and  until  then  the  title  remained  in  the 
sollor.21 

1  Clarke  v.  Spence,  4  Ad.  &  E.  448  ;  Langdcll's  Cases  on  Sales,  816, 
827,  and  index  note  1025  ;  Ross's  Leading  Cases,  308;  Tarling  v.  Bax- 
ter, 6  Barn.  &  C.  3GO  ;  Langdell's  Cases  on  Sales,  621 ;  Ross's  Leading 
Cases,  1 ;  Simmons  v.  Swift,  5  Barn.  &  C.  857 ;  Langdell's  Cases  c'.i 
Sales,  630,  632;    Ross's  Leading  Cases,  137.    And    see    Olyphant  v. 
Baker,  5  Denio,  37J,  332  ;  Langdell's  Cases  on  Sales,  635,  607  ;  Phillips 
?;.  Moor,  71  Me.  73,  81. 

2  Clarke  v.  Spence,  4  Ad.  &  E.  448  ;  Ross's  Leading  Cases,  "0.1 ; 
Langdell's  Cases  on  Gales,  810,  827     Or  ascert:iinable:    See  Martineau 
v.  Hitching,  Law  B.  7  Q.  B.  436  ;  2  Eng.  Rep.  539. 

3  Simmons  v.  Swift,  5  Barn.  &  C.  857  ;  Ross's  Leading  Cases,  S7 ; 
Langdell's  Cases  on  Sales,  Co,'),  632.    Although  he  cannot  take  them, 
away  without  paying  the  price :  Simmons  ?'.  Swift,  5  Barn.  &  C.  8~7 
And  see  Jenkins  v.  Jarrett,  70  N.  C.  2S5,  253.    Statement  criticised  : 
Landreth's  Analysis  of  Sale,  21. 

4  See  Bixon  v.  Yates,  5  Barn.  &  Adol.  313  ;  Ross's  Leading  Cases, 
55. 

5  Meyerstein  v.  Barber,  Law  R.  2  Com.  P.  S3,  51 ;  S.  C.  Law  R.  4 
II.  L.  317,  328.    See  2  Schouler  on  Personal  Property,  g  243  ;  Bennett's 
Benjamin  on  Sales,  §  303,  n.  ft,  and  following  cases  there  cited ;  Web- 
ber v.  Davis,  44  Me.  147 ;   Bailey  v.  Smith,  4'J  N.  II.  143 ;    Dexter  v. 
Norton,  55  Barb.  272  ;  Tome  v.  Dubois,  6  Wall.  548  ,  Grill  v.  Doyle,  53 
Cal.  713. 

6  Olyphant  v.  Baker,  5  Denio,  373  ;  Langdell's  Cases  on  Sales,  625 
607.    And  see  Terry  v.  Wheeler,  25  N.  Y.  520;  Langdell's  Cases  on 
Sales,  706,  709. 

7  See  Long  on  Sales,  42 ;  Ross  Vendors  &  P.  1 ;  2  Kent  Com.  432  ; 
Simmons  v.  Swift,  5  Barn.  &  C.  8"7;  Langdell's  Cases  on  Sales,  65J; 
Tarling  v.  Baxter,  0  Barn.  &  C.  360  ;  Langdell's  Cases  on  Sales,  621. 

8  Darnell  v.  Griffin,  43  Ala.  520,  522.    And  see  Cassell  v.  Backrack, 
42  Miss.  53,  G7.    Compare  Russell  v.  Carrington,  42  N.  Y.  113,  125  ;  1 
Am.  Rep.  403. 

9  Barrett  v.  Goddard,  3  Mason.  107, 110.    And  see  2  Blackst.  Com. 
4-13, 

10  2  Kent  Com.  432  ;  Phillips  v.  Moor,  71  Me.  78,  81.    And  see  2 
Blackst.  Com.  433  ;  Inst.  1,  3,24  ;  Wing  v.  Clark,  24  Me.  366,  372. 

11  Nicolopulo  v.  His  Creditors,  37  La.  An.  473  f  La.  Code,  art.  2456. 

NEWMABK  SALES.  —  2O. 


§    153  TRANSFER   OF   TITLE.  230 

12  2  Schouler  on  Personal  Property,  §  244 ;  citing,  Blackburn  on 
Sales,  147, 1-U 

13  Noy   Max.    87,   S3;   Sheppard's    Touchstone,  224;    Hanson    r. 
Meyer,  6  East,  014  ;  Langdell's  Cases  on  Sales,  639,  645  ;  Ross's  Lead- 
ing Cases,  20.    See  Benjamin  on  Sales,  \\  313,  314  ;  2  Schouler  on  Per- 
sonal Property,  £  244. 

14  See  Bussey  v.  Barnett,  9  Mees.  &  W.  312  ;  Langdell's  Cases  on 
Sales,  711. 

15  See  citations  i:i  next  note. 

16  Michigan  Cont.  R.  R,.  Co.  v.  Phillips,  60  111.  190,   193.    And  see 
Wabash  Elevator  Co.  v.  First  Nat.  Bank,  23  Ohio  St.  311,  319. 

17  Wabash  Elevator  Co.  v.  First  Nat.  Bank,  23  Ohio  St.  301.  319. 
Compare  Behren  v.  O'Donnell,  34  N.  J.  L.  403. 

18  See  citations  in  next  note. 

19  Wabash  Elevator  Co.  v.  First  Nat.  Bank,  23  Ohio  St.  311,  319,  and 
cases  cited. 

20  Turner  v.  Moore,  3  Atl.  Rep.  (Vt.)  467.    And  that  it  was  error  to 
instruct  the  jury  that  if  the  property  was  delivered,  then  the  title 
would  vest  in  the  purchaser :  Turner  v.  Moore,  3  Atl.  Rep.  (Vt.)  467. 

21  Bush  v.  Bender,  4  Atl.  Rep.  (Pa.)  213. 

$  153.  Right  of  possession.  —  Completed  sale.  When 
the  terms  of  sale  are  agreed  on,  and  the  bargain  is 
struck,  and  everything  the  seller  has  to  do  with  the 
goods  is  complete,  the  contract  of  sale  becomes  absolute 
as  between  the  parties,  without  actual  payment  or  de- 
livery,1 and  the  property2  and  the  risk  of  accident3  to 
the  goods  vest  in  the  buyer.4 

Seller's  right  of  possession  till  price  paid.  But  the  sale 
may  be  perfect,  the  title  pass,  and  the  property  be  at 
the  risk  of  the  purchaser,  and  yet  the  vendor  retain  the 
possession  and  have  complete  right  to  retain  the  pos- 
session until  the  price  is  paid,  and  to  compel  payment 
before  delivery.5  Thus  it  is  said  that  the  buyer  is  en- 
titled to  the  goods  on  payment  of  the  price,  and  not 
otherwise,  when  nothing  is  said  at  the  sale  as  to  the 
time  of  delivery,  or  the  time  of  payment.6  The  pay- 
ment or  tender  of  the  price  is  in  such  cases  a  condition 
precedent,7  implied  in  the  contract  of  sale,8  and  the 
buyer  cannot  take  the  goods,  or  sue  for  them,  without 
payment;9  for  though  the  vendee  acquires  a  right  of 
property  by  the  contract  of  sale,  he  does  not  acquire  a 


231  TRANSFER  OF  TITLE.  $    160 

right  of  possession  of  the  goods10  until  he  pays  or 
tenders  the  price.11 

Credit  sale.  But  if  the  goods  are.  sold  upon  credit, 
and  nothing  J3  agreed  upon  as  to  the  time  of  delivering 
tho  goods,  the  vendee  is  immediately  entitled  to  the 
possession,  UP d  the  riirht  of  possession  vests  at  onco12 
in  him,13  but  is  liable  to  be  defeated  if  he  becomes 
insolvent14  before  he  obtains  possession,15  even  though 
the  seller  has  dispatched  the  goods  to  the  buyer,16 

1  2  Kent  Com.  432 

2  See  section  on  TUAXSFKR,  OK  TITLK  JK  GKNKRATJ. 

3  See  sections  on  BISK 

4  Leonard  v.  Davis,  1  Black,  476,  433  ;  2  Kent  Coin.  492.    And  see 
Sweeney  v.  Owsley,  1 1  Mon.  B.  413  ;  Bloxam  v.  Sanders,  4  Barn.  &  C. 
941 ;  Boss's  Leading  Cases,  48. 

5  Bissell  v.  Balcom,  39  N.  Y.  275,  279. 

6  See  Leonard  v.  Davis,  1  Black,  476,  433  ;  2  Kent  Com.  402. 

7  See  Bloxam  v.  Sanders.  4  Barn.  &  C.  041 ;  Boss's  Leading  Cases,  48. 

8  Condition  precedent :  Sae  under  later  chapter  relating  to  CON- 
DITIONAL SAWGS. 

9  2  Ilent  Com.  492, 

10  Wee  Bloxam  v.  Sanders,  4  Barn.  &C.  941;  Boss's  Leading  Cases,  48. 

11  2  Kent  Com.  402,  433.    Possession,  a  right  of  possession  and  a 
right  c.f  property  need  not  co-exist  in  one  and  the  same  person:  2 
Sehouler  on  Personal  Property,  §  243. 

12  Gee  Bloxam  v.  Sanders,  4  Barn  «fc  C.  941 ;  Boss's  Leading  Cases,  48, 

13  2  Kent  Com.  493,    And  see  Leonard  v.  Davh,  1  Black,  47G,  433. 

1 1  Bloxam  v.  Sanders,  4  Barn.  <fc  C.  Oil ;  Boss's  Leading  Cases,  48  J 
citing,  Took  v.  Ilollingswortli,  5  Term  Rep.  215. 

15  2  K^r-t  Com.  403 ;  citing,  Hanson  v.  Meyer,  6  East,  614  ;  Lang- 
cL  ll's  Cases  ca  Sales,  639;  Boss's  Leading  Cases,  20;  liloxam  v, 
Sanders,  4  Barn.  &  C.  941 ;  Boss's  Leading  Casos,  -13  ;  Simmons  i>. 
S.vift,  5  Barn.  &  C.  857  ;  Boss's  Leading  Cases,  £7 ;  Langdell's  Cases 
on  tealus,  650. 

13  See  title  STOPPAGE  IN  TRANSITU,  2  Bouvier  Law  Diet.  (14th  ed.) 
54} ;  2  Kent  Com.  493.  For  the  buyer  s  insolvency,  without  payment 
of  the  price,  defeats  his  right  to  tho  possession,  as  \y^ll  after  t'vj 
transitns  has  begun,  as  before  the  seller  has  parted  with  tho  actual 
possession  of  the  goods:  2  Kent  Com.  403.  And  see  Bloxam  v. 
Sanders,  4  Barn.  &  C.  941 ;  Boss's  Leading  Cases,  48. 

\  ISO.  Change  of  risk.  —  On  transfer  of  title.  It  is  said 
that  the  common  law  fixes  the  risk  where  the  title  re- 
sides ; 1  and  so  soon  as  a  bargain  of  sale  of  specific  per- 
sonal property  is  struck,  the  contract  becomes  absolute, 


$    100  TRANSFER   OF  TITLE.  232 

without  actual  payment  or  delivery,  and  the  property 
and  risk  of  accident  to  it  is  in  the  buyer.2 

Without  delivery.  The  rule  that  the  risk  may  fall  on 
the  buyer  though  delivery  of  the  goods  has  not  been 
made  to  him,  has  been  applied  to  an  action  for  the  price 
of  cattle,  where  part  payment  had  been  made,  but  the 
cattle  were  left  in  the  seller's  pasture,  to  be  taken  by  the 
buyer  within  three  months,  and  were  swept  away  by  a 
flood  ;2  and  to  a  suit  for  the  price  of  a  mule  colt  which 
died  before  weaning  time,  being  left  with  the  mare  until 
then,  under  the  agreement,  where  there  was  a  part  pay- 
ment at  the  time  of  the  sale,  and  nothing  was  said  as  to 
tlio  payment  of  the  balance  ; 4  and  to  an  action  upon  a 
note  for  the  price  of  a  machine,  for  which  the  buyer  was 
to  send,  where  a  messenger  bringing  such  note  left  the 
machine,  contrary  to  orders,  with  the  seller,  and  it  was 
soon  after  destroyed  by  fire  ; 5  and  to  authorize  a  recov- 
ery for  the  price  of  wool  orally  sold  by  sample,  where 
most  of  the  wool  was  burnt  in  the  warehouse  in  which 
i*  lay,  though  several  bales  were  sent  to  the  buyer , 6 
and  to  the  acceptance  of  an  offer  for  cotton  stored  in  a 
warehouse,  which  was  destroyed  by  fire  before  tho  buyer 
could  obtain  the  actual  possession  thereof  under  an  order 
given  to  him,  where  the  buyer  was  to  weigh  the  cotton, 
and  give  the  seller  proper  credit  on  the  buyer's  books  ; 7 
and  to  place  the  loss  upon  the  buyer  in  a  suit  for  the 
price  of  tobacco  carried  away  by  a  flood  while  stored  in 
sheds  on  the  buyer's  farm,  where  it  had  been  raised  as 
a  tenant  by  the  seller,  who  was  to  pay  therefor  an 
amount  determined  by  the  sum  he  might  realize  on  its 
further  salo  , 8  and  to  a  suit  by  the  buyer  to  recover  back 
a  part  payment  on  the  sale  of  a  lot  of  butter  in  the 
seller's  store  where  the  buyer  took,  away  part,  and  the 
residue  was  destroyed  by  the  Chicago  fire ; 9  and  to  a 
defense  that  there  had  been  no  delivery  under  an  agree- 


233  TRANSFER  OF  TITLE.  $   160 

ment  to  exchange  slaves,  where  each  of  them,  being  a 
child,  was  left  with  its  mother,  and  upon  the  death  of 
one,  detinue  was  brought  for  the  other.10 

Specification  of  goods  not  complete.  But  though  the 
title  and  risk  may  pass  without  payment  or  delivery  on 
the  sale  of  specific  grain,  even  though  unseparated  from 
a  larger  mass,  yet  it  is  otherwise  where  110  specific 
quantity  or  lot  is  bargained  for.11  And  where  the  prop- 
erty had  actually  passed  to  the  purchaser  in  goods  that 
were  to  be  taken  by  him  to  another  place,  and  there 
measured  to  fix  the  price,  it  was  held  that  the  vendor 
and  not  the  purchaser  must  bear  the  loss  and  deprecia- 
tion in  measurement  incident  to  the  removal,  according 
to  the  common  course  of  conveyance.12 

1  Joyce  v.  Adams,  8  N.  Y.  291,  296.    And  see  Terry  v.  Wheeler,  25 
N.  Y.  520  ;  Langdell's  Cases  on  Sales,  700,  708.    See  §  161,  on  TITLE 
AXD  RISK. 

2  Sweeney  v.  Owsley,  14  Mon.  B.  413.    And  see  2  Kent  Com.  412; 
Leonard  v.  Davis,  1  Black,  476,  48:» ;  also  §  15;),  on  RIGHT  OK  Pos- 
SKSSIOX.    The  goods  under  a  binding  contract  of  sale  are  at  the  ris»c 
of  the  vendee  till  paid  for  and  taken  away,  and  if  destroyed  by  acci- 
dent in  the  mean  time,  the  vendor  may  recover  the  price:  Wing  v. 
Clark,  24  Me.  360,  372.    And  see  2  Blackst.  Com.  448. 

3  Bissoll  r.  Balcom,  30  N.  Y.  275,  279.    And  see  Hayclen  v.  Demets, 
53  N.  Y.  426,  431  ;  Morey  v.  Medbury,  10  Hun,  540. 

4  Sweeney  v.  Owsley,  14  Mon.  B.  413.    And  see  Henline  v.  Hall,  4 
Ind.  18J. 

5  Wing  v.  Clark,  24  Me.  366,  372  ;  followed,  Phillips  v.  Moor,  71  Me. 

78,  81. 

6  Townsend  i>.  Hargraves,  118  Mass.  325,  332. 

7  King  ?'.  Jarman,  35  Ark.  190,  197.    And  see  Thayer  v.  Lapham,  13 
Allen,  26  ;  Terry  v.  Wheeler,  25  X.  Y.  520 ;  Williams  v.  Corbey,  5  Ont. 
App.  626. 

8  Ruthrauff  v.  Hagenbuch,  58  Pa.  St.  103.    Aud  see  Scott  v.  Mills, 
6  Serg.  &  H.  J-A8. 

9  Seckel  v.  Scott,  66  111.  106.    It  was  held  that  the  title  and  risk  of  . 
loss  were  in  the  buyer,  though  the  firkins  had  not  been  weig.ivd  : 
Seckel  v.  Scott,  66  111.  1U6.    Compare  Barrow  v.  Window,  71  111.  214. 

10  Willis  v.  Willis,  6  Dana,  48.    See  1  Corbin's  Benjamin  on  Sales, 
\\  319,  323,  stating  foregoing  cases. 

11  Levasseur  v.  Cary,  3  Atl.  Rep.  (Me.)  461  ;  S.  C.  22  The  Reporter, 
304  ;  citing,  Phillips  v.  Moor,  71  Me.  76 ;    Waldron  v.  Chase,  37  Me. 
414. 

12  Cushman  v.  Holyoke,  34  Me.  289. 


§   161  TRANSFER  OF  TITLE.  234 

£  161.  Title  and  risk.  —  Risk  as  attending  title.  The 
risk  of  property,  which  is  the  subject  of  sale,  attends 
the  title,1  and  hence  the  buyers  of  turpentine  have 
been  held  bound  to  suffer  the  loss  of  such  casks 
thereof,  which  were  destroyed  before  delivery,  as  had 
been  filled  up.2  So  where  the  amount  of  the  purchase 
money  to  be  paid  for  unweighed  barley  had  been  ad- 
justed by  the  assent  of  the  buyer,  and  nothing  there- 
fore remained  to  be  done  by  the  seller  before  delivery 
was  made,  it  was  held  that  although  the  seller  still  had 
possession  and  a  lien  for  the  purchase  money,  yet  the 
right  of  property  was  in  the  buyer,  and  with  it  the  risk 
of  all  accidents  devolved  on  him.3 

Transfer  of  title.  And  it  has  been  laid  down  that 
where  there  is  an  agreement  for  the  sale  and  purchase 
of  goods  and  chattels,  and  after  the  agreement,  and 
before  the  sale  is  completed,  the  property  is  destroyed 
by  casualty,  the  loss  must  be  borne  by  the  vendor,  as 
the  property  remained  vested  in  him  at  the  time  of  the 
destruction.* 

Assumption  of  risk.  But  in  cases  where  property  is 
to  be  paid  for  on  delivery,  and  where  the  risk  of  deliv- 
ery is  assumed  by  the  purchaser,  the  payment  is  still 
due  if  the  destruction  of  the  property  prevents  the 
delivery;5  though  as  the  presumption  is  that  the  risk 
and  property  go  together,  the  intention  that  the  pur- 
chaser shall  assume  the  risk  before  the  property  has 
vested  in  him  must  be  either  expressed  in  the  written 
contract  between  the  parties,6  or  clearly  to  be  inferred 
from  the  circumstances  of  the  case.1 

1  See  Taylor  v.  Lapham,  13  Allen,  2'J ;  Joyce  ?•.  Adams,  4  Selrl.  206  ; 
Terry  r.  Wheeler,  25  N.  Y.  5JO;  Langdell's  Cases  on  Sales,  70<i,  708  ; 
Willis?-.  Willis,  «Dana,  40;  \Vhitcomb r.  Whitney, 24 Mich.  4sfi  ;  Smith 
?'.  Dalhis,  ;i~>  Iiul.  2o"\  The  risk  attends  upon  the  title,  not  upon  the 
possession,  where  there  is  no  special  agreement  upon  the  subject: 
Terry  r.  Wheeler,  23  N.  V.  529  ;  Langdell's  Cases  on  Sales,  706,  70S. 
The  civil-law  rule  is  also  res  peril  domino  suo:  2  Bouvior  Law  J)ict. 
tit.  Maxims  (14th  ed.),  156.  And  see  Story  on  Bailments,  426  ;  2  Kent 
Com.  531. 


235  TRANSFER  OF  TITLE.  §   162 

2  Rugg  v.  Minett,  11  East,  210 ;  Langdell's  Cases  on  Sales,  647,  651. 
Because  everything  had  been  done  by  the  sellers  which  was  neces- 
sary to  put  the  goods  in  a  deliverable  state  at  the  warehouse  whence 
they  were  to  be  taken  by  the  buyers,  so  that  the  property  passed  to 
the  latter  and   the  goods  remained  there  at  their  risk  :   Rugg  v. 
Minett,  11  East,  210.    So  by  the  civil  law  the  risk  of  loss  before  deliv- 
ery was  placed  on  the  buyer,  though  on  condition  that  the  vendor 
should  be  guilty  of  no  default  in  taking  care  of  the  thing  until  he 
transferred  it  into  the  buyer's   possession  :  Ortolan  Explic.  Hist, 
tome  3,  p.  232  ;  Dig.  47,  2  de  Furtis,  14  Ulp. 

3  Olyphant  v.  Baker,  5  Denio,  379 ;  Langdell's  Cases  on  Sales,  635, 
633. 

4  Thompson  v.  Gould,  20  Pick.  139.    See  Phillips  ?>.  Moor,  71  Me. 
73,  80;  citing,  Tarling  v.  Baxter,  9  Dowl.  &  11.  276  ;  Ilinde  v.  White- 
house,  7  East,  553  ;  Rugg  v.  Minett,  11  East,  210. 

5  Castle  v.  Playford,  Law  R.  5  Ex.  165 ;  Law  R.  7  Ex.  98 ;  1  Eng. 
Rep.  204.    And  see  Alexander  v.  Gardner,  1  Bing.  N.  C.  671  ;  Lang- 
dell's Cases  OM  Sales,  810  ;  Fragano  v.  Long,  4  Barn.  &  C.  219  ;  Lang- 
dell's Cases  on  Sales,  798. 

6  As  in  Castle  v.  Playford,  Law  R.  5  Ex.  165  ;  Law  R.  7  Ex.  98  ;  1 
Eng.  Rep.  201 ;  Martineau  v.  Kitchiag,  Law  R.  7  Q.  B.  436  ;  2  Eng. 
Rep.  5oi). 

7  See  Anderson  v.  Morrice,  1  Abb.  Gas.  713  ;  Law  R.  10  Com.  P.  58, 
609.     Source  of    points  and  authorities  in   this  and  next  section  : 
Bennett's  Benjamin  on  Sales,  ?g  315.  328,  329  a,  410,  411,  and  notes;  2 
Bouvier  Law  Diet.  (14th  ed.)  156 ;  Rugg  v.  Minett,  11  East,  210;  Lang- 
dell's Cases  on  Sales,  647,  651 ;  Olyphant  v.  Baker,  5  Denio,  379  ;  Lang- 
dell's  Cas^s  on  Sales,  635.    And  see  Campbell  on  Sales,  231-233, 268-273  ; 
Blackburn  on  Sales,  1,  2. 

§  162.  Assumption  of  risk.  —  Instances  of.  The  pur- 
chaser has  been  held  to  be  liable  for  the  price  as  assum- 
ing the  risk  of  delivery,  irrespective  of  whether  there 
had  been  a  change  of  property,  where  the  contract  pro- 
vided that  he  should  take  upon  himself  "all  risks  and 
dangers  of  the  seas,  rivers,  arid  navigation,  of  whatever 
nature  or  kind  soever"  j1  and  similar  views  have  been 
maintained  where  the  goods  paid  for  in  advance  and 
destroyed  by  fire  before  they  were  weighed,  were  to  be 
"  at  seller's  risk  for  two  months  "  ; 2  but  in  a  case  where 
goods  were  lost  with  a  vessel  which  sank  while  loading, 
no  sufficient  intention  has  been  deemed  manifested  by 
the  fact  of  the  buyer's  insurance  of  the  goods,  and  the 
terms  of  the  policy,  that  the  purchaser  should  assume 
the  risk  of  loss  before  the  property  has  vested  in 
him.3 


$   163  TRANSFER   OF   TITLE.  236 

Recovery  of  price  of  destroyed  goods.  Where  the  pay- 
ment for  specific  goods  sold  on  credit  is  to  be  made  at 
so  much  by  the  pound,  or  bushel,  or  the  like,  and  the 
price  is  not  ascertained  and  cannot  be  ascertained  with 
precision,4  in  consequence  of  the  goods  being  lost  or  de- 
stroyed, the  seller  may,  nevertheless,  recover  the  price,5 
if  the  risk  is  clearly  thrown  on  the  purchaser,  by  ascer- 
taining the  price,  as  nearly  as  may  be,  by  evidence 
competent  for  the  purpose.6 

1  Castle  v.  Playford,  Law  R.  5  Ex.  165  ;  Law  R.  7  Ex.  98 ;  1  Eng. 
Bep.  204. 

2  Martineau  v.  Kitching,  Law  R.  7  Q.  B.  436  ;  2  Eng.  Rep.  539. 

3  Anderson  v.  Morrice,  1  App.  Cas.  713  ;  Law  R.  10  Com.  P.  58,  609. 

4  Price  generally  :  See  previous  chapter  on  subject. 

5  See  citations  in  next  note. 

6  See  Martineau  ?».  Kitching,  Law  R.  7  Q.  B.  4o5,  456 ;  2  Eng.  Rep. 
531;  Alexander  v.  Gardner,  1  Bing.  N.  C.  <>7t  ;  Lungdell's  Cases  on 
Sales,  810;  Turley  r.  Bates,  2  Hurl    <fe  C.  2<X) ;  LangdelPs  Cases  on 
Sales,  602  ,  Castle  ?-.  Pl.-xyford,  Law  R.  7  Ex.  D8  ;  1  Eng.  Rep.  204 ;  Mc- 
Connell  v.  Hughes,  2J  Wis.  537. 

\  163.  Stipulations  concerning  risk,  delivery,  and  pay- 
mont, —  Consignee's  title,  risk,  and  liability  to  pay.  As 
there  is  no  rule  of  law  to  prevent  parties  from  making 
what  bargain  they  please,  their  intention  is  effectual,  if, 
as  in  the  common  case  where  goods  are  ordered  to  be  sent 
by  a  carrier  to  a  port  of  destination,  they  use  words  in  the 
contract  which  show  that  they  intend  that  the  goods 
shall  be  shipped  by  the  person  who  is  to  supply,  on  the 
terms  that  when  shipped  they  shall  be  the  consignee's 
property,  and  at  his  risk,1  so  that  the  vendor  shall  be  paid 
for  them,2  whether  delivered  at  the  port  of  destination 
or  not.3  And  the  vendor's  duty  in  such  case  is  at  an  end 
when  he  has  delivered  the  goods  to  the  carrier,  so  that  if 
the  goods  perish  in  the  carrier's  hands,  the  vendor  is  dis- 
charged and  the  purchaser  is  bound  to  pay  him  the  price.4 

Sellers  undertaking  to  deliver.  So  if  the  parties  in- 
tend that  the  vendor  shall  not  merely  deliver  the  goods 
to  the  carrier,  but  also  undertake  that  they  shall  actually 


237  TRANSFER  OF  TITLE.  \   163 

be  delivered  at  their  destination,5  and  express  such  in- 
tention, this  also  is  effectual.6  And  in  such  a  case,  if  the 
goods  perish  in  the  hands  of  the  carrier,  the  vendor  is 
not  only  entitled  to  the  price,7  but  he  is  liable  for  what- 
ever damage  may  have  been  sustained  by  the  purchaser 
in  consequence  of  the  breach  of  the  vendor's  contract  to 
deliver  at  the  place  of  destination.8 

Intermediate  arrangement.  But  the  parties  may  in- 
tend an  intermediate  state  of  things,  namely,  that  the 
vendor  shall  deliver  the  goods  to  the  carrier,  and  that 
when  he  has  done  so  he  shall  have  fulfilled  his  under- 
taking, so  that  he  shall  not  be  liable  in  damages9  for  a 
breach  of  contract  if  the  goods  do  not  reach  their  destina- 
tion, while  yet  the  whole  or  part  of  the  price  shall  not 
be  payable  unless  the  goods  do  arrive.10  And  they  may 
accordingly  bargain  that  the  property  shall  vest  in  the 
purchaser  as  owner  as  soon  as  the  goods  are  shipped,  so 
that  they  shall  then  be  both  sold  and  delivered,  and  yet 
the  price  in  whole  or  in  part  shall  be  payable  only  on 
the  contingency  of  the  goods  arriving.11 

1  See  section  161,  on  TITLE  AND  BISK. 

2  Payment  in  general :  See  2  Bouvior  Law  Diet.  (!4th  ed.)  "11 ;  2 
Greenleaf  on  Evidence  (14th  ed.),  \\  516, 536.    And  consult  subsequent 
chapter  on  subject. 

3  Calcutta  Company  v.  De  Mattos,  Law  J.  32  Q.  B.  322 ;  S.  C.  Law 
J.  C3  Q.  B.  214. 

4  See  Dunlop  v.  Lambert,  6  Clark  &  P.  600. 

5  Delivery  in  general :  1  Bouvier  Law  Diet.  (14th  ed.)  452. 

6  Calcutta  Company  v.  De  Mattos,  Law  J.  32  Q.  B.  322  ;  S.  C.  Law 
J.  33  Q.  B.  214. 

7  Price  in  general :  See  previous  chapter  on  subject. 

8  See  Dunlop  v.  Lambert,  6  Clark  &  F.  600. 

9  Damages  in   general :    1  Bouvier  Law  Diet.  (14th  ed.)  420  ;  2 
Greenleaf  on  Evidence,  \\  253,  273. 

10  Calcutta  Company  v.  De  Mattos,  Law  J.  32  Q.  B.  322  ;  S.  C.  Law 
J.  33  Q.  B.  214. 

11  Calcutta  Company  v,  De  Mattos,  Law  J.  32  Q.  B.  322  ;  F!.  C.  Law 
J.  33  Q.  B.  214.    Just  as  they  might,  if  they  pleased,  contract  t'aat  the 
price  should  not  be  payable  unless  a  particular  tree  fell,  but  without 
any  contract  on  the  vendor's  part  in  the  one  case  to  procure  the 
goods  to  arrive,  or  in  the  other  to  procure  the  tree  to  fall :  Calcutta 
Company  v.  De  Mattos,  Law  J.  32  Q.  B.  322. 


H   164-165  TRANSFER   OF  TITLE.  .  238 

\  164.  Title  to  undelivered  chattel.  —  General  rule.  It  is 
the  general  rule  that  on  the  sale  of  a  specific  chattel  the 
title  thereto  passes  to  the  vendee  without  delivery.1 

Illustration.  And  where  on  a  sale  of  lumber  then  in 
the  vendor's  yard  the  pieces  sold  were  selected  and 
designated,  and  the  price  paid,  but  the  vendor  agreed 
to  deliver  the  lumber  at  a  railroad  station,  it  was  held 
that  this  act  to  bo  done  by  the  vendor  did  not  prevent 
the  passing  of  the  title  to  the  purchaser  by  a  salo  other- 
wise complete.2 

1  Ferguson  v.  Northern  Bank  cf  Kentucky,  14  Bush,  455  ;  29  Am. 
Rep.  418.    And  see  Wilkinson  r.  Haliday,  33  Mich.  366, 5fej8.    But  com- 
pare Pettit  v.  First  Nat.  Bank,  4  Bush,  334. 

2  Dixon  v.  Yates,  5  Barn.  <fc  Aclol.  313,  340  ;  Ross'  Leading  Cases, 
53.    And  see  Terry  v.  Wheeler,  25  N.  Y.  5-0 ;  LangdelPs  Cases  on 
S.Jes,  798,  7>)J ;  Chitty  on  Contracts  (8th  Am.  ed.),  p.  332.    See  section 
on  T.HAXSFER  OF  TITLE  WITHOUT  PAYMENT  on  DEUVKRY.    For 
source  of  points  and  authorities  in  this  and  next  section,  see  Fergu- 
RTI  ?•.  Northern  Bank  of  Kentucky,  14  Bush.  4-35;  2J  Am.  Rep.  418; 
First  Nat.  Bank  v.  Me  Andre  ws.  5  Mont  325  ;  51  Am.  Rep.  51 ;  wetzet 
r.  Power,  5  Mont.  217;  Bennett's  Benjamin  on  Sales,  §  315,  n./,  hero 
citi:>g   following  cases:   Jnd.~ Lester   v.  East,  49   Ind.  5?S.    JTv.— 
Sweeney  v.  Ousley,  H  Mon.  B.  413;  BufFington  v.  Ulen,  7  Bush,  S3 ; 
Willis  v.  Willis,  6  Dann,  M  ;  Crawford  v.  Smith,?  Dana,  59,60.     Ohio  — 
Hoobun  v.  Biclwell,  16  Ohio,  509.    Mass.  —  Rice  v.  Codman,  1  Allen, 
377;  Gardners.  Lane,  9  Alien,  493  ;  Thayer  v.  L".pham,  13  Allen,  28; 
"Warden  v.  Marshall,  99  Mass.  305  ;  Merchants'  Nat.  Bank  v.  Bangs, 
302  Mass.  295;  Marble  v.  Moore,  102  Mass.  4-H ;  Martin  v.  A'toms,  104 
Mass.  262  ;  Morse  v.  Sherman,  10f>  MP.SS.  430,  4°,2,  4"-'\    J\fe.  —  Merrill  ?-, 
Parker,  24  Me.  83  ;  Wing  v.  Clurk,  24  Me.  303  ;  Waldron  v.  Chase,  £7 
Me.  4'4;  Moans  r.  Williamson,  37  Me.  5-'6;  Webber  v.  Paris,  44  M^, 
J47;  Hotchkiss  v.  Hunt,  49  Me.  2H;  Chase  v.  Willard,  57  Me.  157; 
Phillips  v,  Moor,  72  Me.  78.    3r.  /T.  — Page  v.  Carpenter,  10  N.  H.  77  ; 
Felton  v.  Fuller,  29  N.  H.  121 ;  Bailey  r.  Smith,  43  N.  H.  153.    jy.  Y.  - 
Olyphant  v.  Baker,  5  Denio,  S7 :) ;  Langdell's  Cases  on  Sal^s,  6:  ri,  t>:  7  ; 
Terry  r.  Wheeler,  25  N,  Y.  520,  524,  5°5 ;  Bigl^r  r.  Hall,  54  N.  Y.  167. 
.Ar.  C.  —  Hurlbnrt  v.  Simpson,  3  Ired.  233.    8.  C.  —  Fnwr  r,  Hilliard,  2 
Strob.  309.    federal  Decision  —  Barrett  r,  Goddard,  3  Mason,  107, 110. 

3  Terry  r.  Wheeler,  25  N.  Y.  520  ;  Langdell's  Cases  on  Sales,  706. 

$  165.  Delivery  sufficient  to  pass  title.  —  Marking  landed 
logs.  A  survey  of  a  large  quantity  of  logs,  landed  on  a 
stream  preparatory  to  driving  by  a  person  mutually 
agreed  upon  by  the  parties  to  a  sale,  and  the  vendor's 
putting  the  purchaser's  mark  on  the  logs  as  they  were 
thus  landed,  has  been  held  to  constitute  a  sufficient 
delivery  to  pass  the  title,  even  as  against  subsequent  pur- 


239  TRANSFER  OF  TITLE.  \  165 

chasers,1  although  by  the  terms  of  the  contract  of  sale 
the  vendor  was  bound  to  deliver  the  logs  at  a  specified 
place  many  miles  below  the  landing.2 

Piano  left  to  be  finished.  And  evidence  has  been  held 
sufficient  to  authorize  a  jury  to  find  a  delivery  of  a 
piano  sufficient  to  pass  the  title  even  as  against  a  subse- 
quent purchaser,  where  it  appeared  therefrom  that  a 
person  offered  to  purchase  a  piano  at  the  shop  of  the 
maker  if  he  would  finish  it ;  that  the  offer  was  there- 
upon accepted,  and  a  bill  of  sele  made;  and  that  the 
price  was  paid  at  a  subsequent  day,  the  piano  being 
left  to  be  finished.3 

Delivery  to  common  carrier.  It  has  been  held  that 
delivery  to  a  common  carrier  prima  facie  vests  the 
right  to  the  immediate  possession  of  the  property  in  the 
consignee  ;  that  the  law  implies  by  delivery  to  the  car- 
rier that  the  goods  become  the  property  of  the  con- 
signee ;  and  that  the  effect  of  a  consignment  of  goods  by 
a  bill  of  lading  is  to  vest  the  property  in  the  consignee.4 

Shipment  to  consignee.  But  the  mere  act  of  shipment 
would  not  have  the  effect  to  vest  the  title  in  the  con- 
signee in  a  case  where  the  consignee  had  never  seen  or 
accepted  the  property,  where  there  had  been  no  bill  of 
lading  nor  any  notice  of  shipment,  and  where  the  con- 
signor paid  freight,  and  had  the  right  to  recall  the 
goods  or  to  change  their  destination,  while  the  agree- 
ment under  which  the  goods  were  shipped  provided 
that  the  property  should  riot  be  credited  to  the  account 
of  the  consignor  until  the  same  had  actually  been 
received  and  sold  by  the  consignee.5 

1  Bethel  Steam  Mill  Co.  v.  Brown,  57  Me.  9. 

2  Bethel  Steam  Mill  Co.  v.  Brown,  67  Me.  9.    And  see  Dyer  v. 
Llbby,  Cl  Mo.  4"> ;   Filkins  v.  Whylaiul,  2i  N.  Y.  341 ;  Russell  v.  Car- 
rington,  4'i  N.  Y.  J!3  ;  1  Am.  Rep.  493  ;  Cummings  v.  Griggs,  2  Duval, 
87  ;  Bertelson  v.  Bower,  81  Irid.  512. 

3  Thorndike  t».  Bath,  114  Mass.  116.    And  see  Bates  v.  Coster,  3 
Thomp.  &  C.  cJO. 


§    166  TRANSFER  OF  TITLE.  240 

4  Wetzel  v.  Power,  5  Mont.  217  ;  S.  C.  2  Pac.  Rep.  338.    See  Walsh 
v.  Blakely,  9  Pac.  Rep.  (Mont.)  809. 

5  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325 ;  51  Am.  Rep.  51. 

§  166.  Delivery  as  prerequisite  to  transfer  of  title. — 
Where  engagement  to  deliver  at  certain  place,  etc.  The 
general  rule  is  that  title  will  not  pass  until  delivery,  if 
it  is  a  part  of  the  contract  of  sale  that  the  seller  shall 
deliver  the  property  sold  at  some  place  specified,  and 
receive  payment  on  delivery,1  and  it  is  declared  that 
the  property  in  a  specified  chattel  bought  in  a  shop,  to 
be  paid  for  upon  being  sent  home,  does  not  pass  before 
delivery,2  and  that  if  by  the  terms  of  the  contract  the 
seller  engages  to  deliver  the  thing  sold  at  a  given  place, 
and  there  be  nothing  to  show  that  in  the  mean  time  the 
thing  sold  was  to  be  at  the  risk  of  the  buyer,  the  con- 
tract is  not  fulfilled  by  the  seller  unless  he  delivers  it 
accordingly.3 

Applications  of  rule.  The  general  rule  has  been  ap- 
plied to  the  shipment  of  the  cargo  of  a  vessel  captured 
after  war  had  been  declared  between  the  United  States 
and  Great  Britain,  and  claimed  by  the  consignees,  who 
were  American  citizens ; 4  to  the  loading  of  a  buyer's 
barges  with  coal,  which  was  attached  by  the  seller's 
creditors  before  the  barges  could  be  floated  to  the  place 
of  destination;5  to  determine  the  place  of  sale  on  the 
setting  apart  of  bottles  of  liquor  afterwards  carried  to 
the  purchaser;6  and  to  a  case  where  there  was  de- 
ficiency claimed  in  the  quantity  of  milk  in  cans  sent  to 
the  buyer  by  railroad.7 

Shipment  to  pay  for  advances.  The  rule8  is  that  if 
there  is  a  mere  agreement  to  ship  goods  or  produce  to 
pay  for  advances,  the  property  shipped  would  not 
belong  to  the  consignee  until  actually  received  and 
possessed  by  him.9  But  if  the  agreement  appropriates 
specific  property  to  the  payment  of  such  advances,  and 


241  TRANSFER  OP  TITLE.  §  167 

such  appropriation  is  evidenced  and  authenticated  by 
a  bill  of  lading,  then  the  title  to  the  property  passes  to 
the  consignee  by  a  delivery  to  the  carrier.10 

1  1  Corbin's  Benjamin  on  Sales,  §  325,  giving  illustrations  later 
stated.    But  Slight  evidence  is  accepted  as  sufficient  to  show  tiiat 
title  passes  immediately  on  thes.i!"  though  the  seller  is  to  make  a 
delivery  :   1  Corbin's  Benjamin  on  Sales,  §  325.    Compare  2  Schouler 
out  Personal  Property,  §  245. 

2  See  1  Smith's  Leading  Cases  (Eng.  ed.  1879),  p.  1G4. 

3  Calcutta  Co.  v.  De  Mattos,  Law  J.  32  Q.  B.  322, 355.    See  Bennett's 
Benjamin  on  Sales,  #  oGO,  n.  et  asserting  that  the  statement  made  in 
the  text  as  to  goods  bought  in  a  shop  is  perhaps  correct  as  one  of 
presumption,  but  that  the  real  test  is  the  intention  of  the  parties  to 
make  delivery  by  the  vendor  in  the  nature  of  a  condition  precedent. 
And  citing  Boynton  v.  Veazie,  24  Me.  2Sfi;  Weld  r.  Cane,  98  Mass. 
352;  Lint  v.  Woodhall,  113  Mass.  394;  Goddard  v.  Binney,  115  Mass. 
455  ;  15  Am.  Hep.  112. 

4  The  Venus,  8  Cranch,  253,  275. 

5  Swenthers  v.  Grubbs,  88  Pa.  St.  147, 150.    And  see  Fry  v.  Lucas, 
29  Pa.  St.  35(> ;  McCandlish  v.  Newman,  22  Pa.  St.  4^0.. 

6  Commonw.  v.  Greenfield,  121  Mass.  140.    And  compare  Suit  v. 
Woodhall,  113  Mass.  391,  394. 

7  Devine  v.  Edwards,  101  111.  138.    See  further  on  this  subject, 
The  Elgee  Cotton  Cases,  22  Wall.  180, 192  ;  Holliday  v.  Hamilton,  11 


Wall.  560,  504  ;  Thompson  v.  Cinn.  B,.  R.  1  Bond.  152  f  Pierson  v.  Hoag, 
47  Barb.  243 ;  Underbill  v.  Muskegon  Boom  Co.' 40  Mich.  660. 

8  Clearly  illustrated  by  the  case  of  Holliday  v.  Hamilton,  11 
Wall.  564. 

9  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325  ;  51  Am.  Rep.  51. 
10    First  Nat.  Bank  v.  McAndrews,  5  Mont.  325 ;  51  Am.  Rep.  51. 

$  167.  Delivery  not  such  prerequisite. — Express  or  im- 
plied intent.  Although  the  general  rule  makes  delivery 
when  stipulated  to  be  made  at  a  particular  place  a  pre- 
requisite to  the  transfer  of  the  title,1  yet  property  passes 
at  once  on  the  sale,  if  such  is  the  intent,  though  the 
seller  is  afterwards  to  make  a  delivery  of  the  goods ; a 
and  such  intent  may  be  expressly  declared,3  or  may  be 
inferred  from  circumstances.4 

When  intent  inferred.  And  in  the  absence  of  an  ex- 
press agreement,  the  intent  that  title  shall  pass  at  once 
by  the  contract,  although  the  seller  is  to  deliver,  is  in- 
ferred where  the  buyer  is  to  give  notice  of  time  or  place 
of  delivery,5  where  payment  in  full  is  made,6  where 
NirwMAiiK  SALES.  — 21. 


?   168  TRANSFER  OF  TITLE.  242 

the  buyer  employs  the  seller  to  remove  the  property,7 
or  where  there  is  other  evidence  that  the  continued 
possession  of  the  seller  is  merely  for  the  convenience 
of  the  buyer,8  or  that  the  removal  of  the  goods  is  made 
by  the  seller  as  agent  for  the  buyer ; 9  nor  where  the 
sale  appears  to  be  absolute,  the  identity  of  the  thing 
iixed,  and  the  price  for  it  paid,  is  there  room  for  an  in- 
ference that  the  property  remains  the  seller's  merely 
because  he  has  engaged  to  transport  the  goods  to  a 
given  point.10 

1  See  last  section,  on  DELIVERY  AS  PREREQUISITE,  etc. 

2  1  Corbin's  Benjamin  on  Sales,  \  C29. 

3  As  in  Lynch  ?'.  O'Donnell,  127  Mass.  311.    Compare  Common w. 
v.  Greenfield,  1-1  Muss.  40. 

4  See  citations  in  succeeding  notes. 

5  Weld  v.  Cane,  98  Mass.  152.    And  see  Higgins  v.  Cheesman,  9 
Pick.  7. 

6  See  Terry  v.  Wheeler,  25  N.  Y.  525. 

7  Lingham  v.  Eggleston,  27  Mich.  324.    And  see  Whitcomb  v. 
Whitney,  24  Mich.  486  ;  Newcomb  v.  Cabell,  10  Bush,  460,468  ;  Shelton 
v.  Franklin,  68  111.  333,  338. 

8  See  Bethel  Steam  Mills  Co.  v.  Brown,  57  Me.  9. 

9  Hobbs  v.  Carr,  127  Mass.  532.    And  see  Terry  v.  Wheeler,  25 
N.  Y.  5-5. 

10  Terry  v.  Wheeler,  25  N.  Y.  520,  525.  And  see  Hunter  ?-.  Wetsell, 
84  N.  Y.  549,  555;  Gray  r.  Mayor  of  New  York,  46  N.  Y.  Sup.  Ct.  4n4. 
Compare  Bethel  Steam  Mills  Co.  v.  Brown,  57  Me.  i) ;  Boynton  r. 
Veazie,  24  Me.  286;  Underbill  v.  Boom  Co.  40  Mich.  6f>0 :  Mutikegon 
Boom  Co.  r.  Underbill,  43  Mich.  629.  And  consult  1  Corbin's  Benja- 
min on  Sales,  \\  330-332,  stating  illustrations  given  in  paragraph. 

§  163.  Estoppel  of  seller.  —  By  active  inducements,  etc. 
In  general,  if  the  seller  by  his  words  or  conduct  act- 
ively induces  the  buyer's  creditors  to  believe  that  the 
buyer's  title  to  an  article  is  absolute  and  unconditional, 
he  will  be  estopped  from  afterwards  setting  up  the  con- 
ditions of  that  sale  as  against  such  creditors.1 

Delay  in  bringing  replevin,  etc.  But  when  the  buyer's 
creditors  get  possession  wrongfully,  delay  of  a  few 
months  in  bringing  replevin  for  the  chattels,  though 
expense  was  incurred  by  the  wrong-doer  in  the  care  of 


213  TRANSFER  OF  TITLE.  g  169 

them  in  the  mean  time,  cannot  be  set  up  as  an  estoppel 
to  the  seller,2  if  the  latter  never  induced  the  taking  or 
withholding  of  the  chattels.3 

1  Wy  lie's  Appeal,  00  Pa.  St.  210.    So  one  who  puts  chattels  into 
the  hands  of  another,  with  the  understanding  that  the  latter  shall 
s^ll  them  as  his  own,  is  estopped  from  asserting  his  title  as  against 
an  attaching  creditor  of  the  bailee  representing  himself  to  be  the 
owner  :  Drew  v.  Kimball,  43  N.  II.  282. 

2  Hull  v.  Hull,  48  Conn.  250. 

3  Hull  v.  Hull,  48  Conn.  250  ;  2  Schouler  on  Personal  Property  (2d 
e'l.),  p.  554,  §  54',  whence  this  and  last  paragraph  derived.    Estoppel 
of  bankrupt  manufacturer  and  his  assignees  by  obtaining  part  pay- 
ment for  engine  on  false  representation  that  it  was  finished:  Ex 
parte  Bockford  K.  K.  Co.  1  Low.  345.    See  2  Scbouler  on  Personal 
Property  (2d  ed.),  \  543. 

§  169,  Estoppel  of  warehouseman,  etc.  —  Against  seller 
and  sub-buyer.  Upon  the  principle  of  estoppel,  ware- 
housemen and  other  bailees  may  render  themselves 
liable  not  only  to  the  sub-buyer,  because  of  conduct  in- 
ducing him  to  take  a  course  otherwise  prejudicial  to  his 
interests,1  but  also  to  the  original  seller,  if  such  con- 
duct was  unauthorized  by  him,  and  the  goods  should 
have  continued  to  be  held  for  him.2 

By  attornment  to  sub-vendee.  Whatever  might  be 
the  rule  between  buyer  and  seller,8  a  warehouseman  or 
agent  who  has  once  attorned  to  a  party  as  sub-vendee 
cannot  afterwards  disaffirm  his  acts  and  admissions,* 
and  dispute  the  sub-vendee's  title  to  the  goods.5 

By  keeping  delivery  order.  So  it  has  been  held  in  the 
British  provinces  of  America  that  where  a  warehouse- 
man receives  from  a  vendee  the  delivery  order  of  a 
vendor,  arid  keeps  it  for  over  a  month  in  his  possession 
without  notifying  the  vendee  that  the  property  docs 
not  belong  to  the  person  who  made  tfie  delivery  order, 
such  warehouseman  is  liable  to  the  vendee  for  tlie 
goods  mentioned  in  the  order.6 

1  2  Schouler  on  Personal  Property  (2d  ed.),  |  544,     Liability  to 
ori,?aial  buyer  :  See  later  paragraph  of  section. 

2  2  Scuouler  on  Personal  Property  (2d  ed.),  \  544. 


I  169  TRANSFER  OF  TITLE.  244 

3  See  Stonard  v.  Dunkin,  2  Camp.  344  ;  Langdell's  Cases  on  Sales, 
653. 

4  2  Schouler  on  Personal  Property  (M  ed.),  \  544. 

5  See  Stonard  v.  Dunkin,  2  Camp.  344  ;  Langdell's  Cases  on  Sales, 
653  ;  Hawes  v.  Watson,  2  Barn.  &  C.  540  ;  Langdell's  Cases  on  Sales, 
65,? ;  Gosling  v.  Birnie.  7  Bing.  339  ;  Gillett  v.  Hill,  2  Cromp.  &  M.  536  ; 
Langdell's  Cases  on  Sales,  755;  Hall  v.C  ' 


.  Griffin,  10  Bing.  246 ;  Lucas  v. 

..    ..  ___    „    ..   .  sventry,  2  Hurl.  &  C.  164 :  32 

Law  J.  Ex.  187;  Langdell's  Cases  on  Sales,  760;  Bennett's  Benjamin 


on  Sales  (4th  Am.  ed.),  p.  81)3,  $  781,  so  citing  these  cases,  and  referring 
also  to  Swamvick  v.  Southern,  9  Ad.  &  E.  8;>5  ;  Langdeli's  Cases  on 
Sales,  673  ;  Biddle  v.  Bond,  6  Best  &  Smith,  225 ;  34  Law  J.  Q.  B.  137  ; 
Knights  v.  Wiffen,  Law  R.  5  Q.  B.  660  ;  Langdell's  Cases  on  Sales,  766  ; 
Barnard  v.  Campbell,  55  N.  Y.  456  ;  Voorhis  v.  Olmstead,  66  N.  Y.  113 ; 
Schouler  on  Bailments,  119.  A  warehouseman  is  estopped  from 
denying  the  title  of  the  one  to  whom  he  gives  his  receipt:  Chapman 
v.  Searle,  3  Pick.  38,  43  ;  Hurff  v.  Hires,  40  N.  J.  L.  531,  5jl ;  Adams  v. 
Gorham,  6  Cal.  63  ;  Goodwin  v.  Scaxwell,  6  C.il.  541 ;  as  cited,  2  Cor- 
biu's  Benjamin  on  Sales  (Am.  ed.),  p.  1007,  §  1155,  n.  12 ;  which  also 
refers  in  note  a  to  Farmeloe  v.  Bain,  Law  R.  1  C.  P.  D.  445  ;  Water- 
house  v.  London  etc.  By.  Co.  41  L.  T.  N.  S.  553  ;  Simm  v.  Anglo-Amer. 
Tel.  Co.  5  Q.  B.  D.  1S8 ;  Webb  v.  Herne  Bny  Commrs.  Law  B.  5  Q.  B. 
6-12  ;  I'l  re  Bahia  etc.  By.  Co.  Law  B.  3  Q.  B.  584  ;  Hart  v.  Frontino 
Gold  Mg.  Co.  Law  B.  5  Ex.  ill. 

6  See  Twining  v.  Oxford,  2  Thomson,  IS  ;  Hogan  v.  Frederickton 
Boom  Co.  2  Pugs.  <fe  B.  163  ;  Davis  v.  Brown,  9  Up.  Can.  Q.  B.  193  ; 
Holten  v.  Samson,  11  Up.  Can.  C.  P.  606.  See  Bennett's  Benjamin  on 
Sales  (4th  Am.  ed.),  p.  8 j3,  §  731,  n.  /,  so  citing  these  cases. 


245  BONA  FIDE  PURCHASERS.  g   170 


CHAPTER  XIV. 

BONA   FIDE   PURCHASERS. 

$  170.  General  doctrines. 

2  171.  Title  only  from  owner,  etc. 

2  172.  Goods  in  another's  wrongful  possession. 

2  173.  Judicial  sales. 

\  174.  Apparent  exceptions. 

2  175.  Ostensible  ownerohip  or  authority. 

?  176.  Purchase  of  stolen  goods. 

t  177.  Liability  of  agent  or  bailee. 

\  178.  Markets  overt. 

\  179.  Extent  of  exemption. 

§  180.  Not  recognized  in  this  country 

2  181.  Lost  chattels. 

2  182.  Sales  by  trespassers. 

2  183.  Illegal  levy  and  sale. 

2  184.  Unauthorized  sales  by  bailees. 

2  185.  Transfers  of  unforfeited  pledges. 

2  186.  Sales  of  forfeited  pledges. 

2  187.  Delivery  of  goods  for  sale. 

2  188.  Transfer  by  factor. 

2  189.  Purchase  generally  from  one  lacking  title. 

2  190  State  of  title  governs. 

\  191.  Demand. 

2  192.  Purchase  from  one  having  a  voidable  or  defeasible  title. 

2  193.  Sale  with  condition  subsequent. 

2  194.  Sale  with  condition  precedent. 

2  1D5  Delivery  as  waiver  of  condition. 

2  196.  Seller's  possession. 

2  197  Transfers  by  fraudulent  vendees. 

2  198.  Superior  equity  of  innocent  purchaser. 

2  199  Estoppel  of  owner. 

2  200.  Voidable  or  defeasible  title. 

2  201.  Title  of  innocent  purchaser. 

2  202.  Title  of  fraudulent  vendee. 

2  203.  Statements  of  doctrine. 

1  204.  Prevalence  of  exemption. 

2  205.  Limitations  upon  exemption. 

\  206.  Obtaining  goods  by  false  pretenses. 


§  170  BONA  FIDE   PURCHASERS.  246 

x  170,  General  doctrines.  —  Principle  concerning  divest  • 
ing  of  property.  The  universal  and  fundamental  prin- 
ciple of  our  law  of  personal  properly  is,  that  no  man 
can  be  divested  of  his  property  without  his  own  con- 
sent ; ]  and  consequently  that  even  the  honest  pur- 
chaser under  a  defective  title  cannot  hold  against  the 
true  proprietor.2 

No  better  title  conferred  than  possessed.  For  since  no 
one  can  give  what  he  does  not  possess,3  or  sell  a  right 
when  he  has  none  to  dispose  of,4  it  ordinarily  follows 
that  no  one  can  confer  a  better  title5  than  ho  has.6 

Purchaser  takes  seller's  interest.  Hence,  the  general 
rule  is  stated  to  be,  that  a  purchaser  of  personal  prop- 
erf  y  takes  only  such  title  as  his  seller  has,  and  is 
authorized  to  transfer;7  in  other  words,  that  he  ac- 
quires precisely  the  interest  that  the  seller  has,  and  no 
other  or  greater.8 

Seller's  want  of  title  or  authority.  He  accordingly 
takes  the  property,  in  most  cases,  subject  to  vital  in- 
firmities in  the  title  which  he  may  afterwards  discover.9 
Hence,  he  usually  gains  no  title  whatever  if  it  turns  out 
that  the  goods  were  found,10  or  stolen,11  or  seized  or 
converted  by  the  seller,12  and  this  principle  prevails  no 
matter  how  long  the  chain  of  transfers.13  And  when- 
ever a  person  purchases  an  article  from  a  party  without 
title  or  authority  to  dispose  of  the  article,  such  pur- 
chaser acquires  no  title,14  but  the  true  owner  has  a 
right  to  reclaim  his  property,  and  to  hold  any  one 
responsible  who  has  assumed  the  right  to  dispose  of 
it.15 

Caveat  emptor,  etc.  For  the  common-law  maxim 
caveat  emptor,16  which  is  applicable  to  such  cases,17  re- 
quires the  purchaser  to  be  on  his  guard,18  as  he  ought 
not  to  be  ignorant  that  he  is  purchasing  the  rights  of 
another.19  And  the  doctrine  that  the  state  of  the  title 


247  BONA  FIDE   PURCHASERS.  §  170 

governs20  has  been  formulated  under  the  civil  law  in 
the  declaration  that  the  sale  of  another's  property  is  a 
nullity.21 

Recourse  against  seller.  The  purchaser  must,  there- 
fore, look  to  the  seller  for  indemnity,22  and  the  buyer's 
only  recourse  against  the  seller  is,  in  general,  upon  any 
warranty  of  title  which  may  be  directly  given,  or  may 
be  implied23  from  the  transaction.24 

Exceptions  to  general  rule.  But  there  are  in  this 
country  apparent  exceptions  to  these  rules,  or  modifi- 
cations thereof,25  in  the  cases  of  transfers  of  negotiable 
instruments,26  bona  fide  purchasers  from  fraudulent 
buyers,27  or  others  having  a  voidable  or  defeasible 
title,28  and  under  statutory  regulation,  from  factors  and 
those  intrusted  with  documents  of  title,29  as  well  as  in 
other  cases  where  the  person  having  title  to  the  goods 
is  deemed  estopped  from  claiming  them  on  account  of 
the  apparent  ownership  or  authority  which  he  has  con- 
ferred upon  another.30 

1  Saltus  v.  Everett,  20  Wend.  267 ;  32  Am.  Dec.  541 ;  Jennings  v. 
Gage,  13  111.  610  ;  56  Am.  Dec.  476,  480  ;  citing,  Ash  v.  Putnam,  1  Hill, 
303  ;  and  cited,  Fawcett  v,  Osborn,  32  111.  411 ;  83  Am.  Dec.  278,  281. 
No  divesting  of  owner's  rights  save  by  his  own  act  or  by  operation 
of  law  :  2  Schouler  on  Personal  Property,  g  25 ;  citing,  also,  Quinn  v. 
Davis,  78  Pa.  St.  15.    See  present  writer's  article  on  "  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,  for  discussion  of  entire  subject. 

2  Saltus  v.  Everett,  20  Wend.  267;  32  Am.  Dec.  541;  Evansville 
etc.  B.  11.  Co.  v.  Erwin,  84  Ind.  457, 466  ;  Mayes  t/.  Bruton,  1  Tex.  App. 
Civ.  Cas.  \  695). 

3  Nemo  dot  quod  non  habet,  per  Willes,  J.,  in  Whistler  v.  Foster,  14 
Com.  P>.  N.  S.  2-iS;  quoted,  Barnard  v.  Campbell,  55  N.  Y.  450,  4G9. 
And  see  Leigh  v.  Mobile  etc.  R.  B.  Co.  58  Ala.  165, 176. 

4  Fawcett  v.  Osborn,  32  111.  425;  83  Am.  Dec.  278,  282.    And  see 
McCully  v.  Hardy,  1.J  111.  App.  631. 

5  S«e  Wright  v.  Solomon,  19  Cal.  64  ;  79  Am.  Dec.  196, 202 ;  Klein  v. 
Seibold,  89  111.  540,  542. 

6  Nemo  plus  juris  ad  allum  transferre  potest  quam  ipse  habet: 
Broom's  Legal  Maxims,  45-';  quoted,  Barnard  v.  Campbell,  .>•>  .V  \  . 
456,  460.    And  see  Ventress  v.  Smith,  10  Peters,  161,  l<o;  Leigh    r. 
Mobile  etc.  K.  R.  Co.  58  Ala.  165, 176.    No  one  can  transfer  a  greater 
right  or  hotter  title  to  property  than  he  possesses  himself :  Alexander 
»  Swiickhamer,  105  Ind.  81  ;  55  Am.  Rep.  180, 184  ;  4  N.  E.  Rep.  4;«  436. 
And  *;«o  Yv'h^iwright  v.  Depoyst^r,  1  Johns.  471 ;  3  Am.  Dec.  345,  346  ; 
Hamet  v.  Letcher,  37  Ohio  St.  356 ;  41  Am.  Rep.  519,  521 ;  Gibbs  v. 


§   170  BO^A  FIDE   PURCHASERS.  248 

Jones.  46  111.  319,  321.  It  is  a  maxim  alike  of  the  common  and  civil 
law,  that  no  o:ie  can  transfer  to  another  a  better  title  than  he  has 
himself:  2  Kent  Com.  324  ;  Evansville  etc.  R.  It.  Co.  v.  Erwin,S4  Ind. 
4",  4GG. 

i,  460.    See  note  to  Williams  v. 


7    Barnard  v.  Campbell,  55  iS".  Y.  456.  4C 
Merle,  11  Wend.  80  ;  25  Am.  Dec.  6u4,  GOG. 


8  Barnard  v.  Campbell,  55  N.  Y.  456,  460;  quoted  in  article  on 
"Title  from  Fraudulent  Vendees,"  7  South  Law  Rev.  N.  S.  55!).  A 
s-il'3  cx  ri  termini,  imports  nothing  more  than  that  the  bona  fltfe  pur- 
chas-T  succeeds  to  the  rights  of  the  vendor:  2  Kent  Com.  324; 
Evttusville  etc.  R.  R.  Co.  v.  Erwin,  84  Ind.  457,  466. 

0  Per  Lord  Chancellor  Cairns,  in  Cundy  v.  Lindsay,  Law  II.  3  App. 
C.  463  ;  14  Eng.  Rep.  345. 

10  See  Sherwood  v.  Meadow  Valley  Mining  Co.  50  Cal.  412. 

11  See  remarks  of  Lord  Chaiicellor  Cairns,  in  Candy  v.  Lindsaj', 
L::w  It.  3  App.  C.  46  J ;  24  Eng.  Rep.  345  :  BreckenriOge  v.  McAfee,  54 
I:id.  141 ;  Sharp  v.  Parks,  43  111.  511 ;  Gulvin  v.  Bacon,  2  Fairf.  30,  31 ; 
25  Am.  Dec.  258. 

12  See  "  Conversion  by  Purchase,"  15  Ain.  Law  Rev.  363,  369,  370 ; 
Story  on  Sales,  §  188. 

13  See  Parham  v.  Riley,  4  Cold.  9  ;  Story  on  Sales,  ?  188.    The  real 
owner  is  entitled  to  follow  his  property,  an  1  rech.im  it  wherever 
found  :  Fawcett  v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278,  285. 

14  See  note  to  Williams  v.  Merle,  11  Wend.  80  :  25  A  m.  Dec.  604, 606  ; 
Carruichael  v.  Buck,  10  Rich.  332  ;  70  Am.  Dec.  226,  227. 

15  Williams  v.  Merle,  11  Wend.  80  ;  25  Am.  Dec.  604. 

16  See  1  Bouvier  Law  Diet.  (14th  ed.)  248  ;  Broom's  Legal  Maxims, 
(Od  Lend,  ed.)  6JO. 

17  See  Williams  v.  Merle,  11  Wend.  80;  25  Am.  Dec.  604  ;  McCully 
v.  Hardy,  13  111.  App.  631. 

18  See  Fawcett  v.  Osborn,  32  111.  411  ;  83  Am.  Dec.  278,  235. 

19  2  Bouvier  Law  Diet.  tit.  Maxims  (14th  ed.),  119. 

20  See  Roberts  v.  Dillon,  3  Daly,  50 ;  quoting,  Hartop  v.  Hoare,  3 
AtK.  4J. 

21  Code  Napoleon,  art.  1599  ;  Story  on  Sales,  ?  188. 

22  Williams  v.  Merle,  11  Wend.  SO  ;  25  Am.  Dec.  604. 

23  See  Fawcett  r.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278,  282  ;  Klein  v. 
Sc-ibold,  8J  111.  540,  542. 

24  See  2  Schouler  on  Personal  Property,  \  19,  p.  22.    And  consult 
subsequent  diaper  on  WAKKAXTY. 

25  See  Leigh  r.  Mobile  etc.  R.  R.  Co.  58  Ala.  165,  176,  et  seq.;  ?  174, 
on  APPARENT  EXCEPTIONS. 

26  See  Barnard  r.  Campbell,  55  X.  Y.  456.  460  ;  quoted,  "  Title  from 
Fraudulent  Vendees,"  7  South  Law   R,-v.  IN.  S.  559.    And  consult 
Fawcett  v.  Osborn,  32111.  411  ;  83  Am.  Dec.  27 :<,  2S1. 

27  See  Old    Dom.  Steamship    Co.  r.  Burckhardt,  31  Gratt.  664  ; 
Rowley  r.  Bigelow,  12  Pick.  307  ;  23  Am.  Der*.  607  ;  Barnard  r.  Camp- 
bell, 65  Barb.  286;  affirmed  on  appeal,  55  N.  Y.  458;  motion  for  re- 
argument  denied,  58  N.  Y.  73,  or  17  Am.  Rep.  208. 

03  See  Stevens  7'.  Hyde,  32  Barb.  180  ;  Rowley  r.  Bigelow,  12  Pick. 
3^7  ;  23  Am.  Dec.  607;  "Conversion  by  Purchase,"  15  Am.  Law  Rev. 
363,  370. 


249  BONA  FIDE   PURCHASERS.  §   171 

20  See  chapters  on  FACTORS'  ACTS,  and  on  DOCUMENTS  OF  TITLE. 
And  in  England  in  the  case  of  sales  i:i  markets  overt :  See  Fuxvcctt 
v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278,  282,  283.  And  consult  \\  178,  180. 

30  See  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325 ;  as  quoted,  Bar- 
stow  r.  Savage  Mining  Co.  64  Cal.  385 ;  49  Am.  Hep.  705.  And  consult 
§  175,  on  OSTENSIBLE  OWNERSHIP,  etc. 

§  171.  Titlo  only  from  owner,  etc.  —  Owner  or  author- 
ized representative,  etc.  The  general  rule  that  only  the 
owner  of  goods  or  his  authorized  representative  can  by 
a  sale  of  personal  property  convey  a  valid  title  to  the  pur- 
chaser,1 has  been  sustained 2  by  decisions  in  Maine,3  Ver- 
mont,* New  Hampshire,5  Massachusetts,6  New  York,7 
Missouri,8  Illinois,9  and  England.10  Thus,  no  title  is 
gained  by  one  who  purchased  a  pair  of  diamond  ear- 
rings in  good  faith,  and  without  notice  of  the  want  of 
authority  to  sell,  on  the  part  of  the  vendor,  who  had  been 
intrusted  with  the  property  to  show  to  his  customers.11 
And  it  is  has  been  held  that  one  who  has  bought  prop- 
erty under  an  arrangement  which  would  be  fraudulent 
as  against  the  creditors  of  the  vendor,  or  by  an  unrati- 
fied  sale  in  which  the  vendor's  agent  has  exceeded  his 
authority,  obtains  110  title  which  he  can  protect  from 
attachments  sued  out  by  the  vendor's  creditors.12  So 
it  is  declared  to  be  the  general  rule  of  law  that  in  the 
absence  of  authority,  or  of  property,  a  sale  or  a  pledge 
of  chattels  confers  no  title,  even  when  the  person 
making  it  is  in  possession,13  and  the  person  to  whom  it 
is  made  pays  a  valuable  consideration,  or  advances 
money  in  good  faith,  and  without  notice  of  the  right  or 
title  of  the  true  owner.14 

Goods  in  possession  of  wrong-doer.  But  the  goods 
need  not  be  in  the  actual  possession  of  the  owner, 
but  may  be  in  the  possession  of  a  third  party  who 
wrongfully  withholds  them ; 15  and  the  sale  in  such 
cases  is  not  a  sale  of  a  right  of  action,  but  of  the  thing 
itself.16 


§172  BON  A   FIDE    PURCHASERS.  250 

Thing  not  yet  owned  or  existing.  So  a  person  may 
make  a  valid  agreement  to  sell  a  thing  not  yet  his,17  or 
even18  a  thing  not  yet  in  existence.19 

1  See  Williams  v.  Merle,  11  Wend.  80 ;  25  Am.  Dec.  604, 606,  n. 

2  According  to  authorities  cited  in  Bennett's  Benjamin  on  Sales 
§  (!,  n.  <t.    Compare  Story  on  Sales,  §  18S ;  Campbell  on  Sales,  32, 30,  S3. 
Li.:l,iiuy  of  j-.c^r.t  to  owner  for  unauthorized  sale :  See  Wellington  v. 
Blorey,  00  X.  Y.  (EG. 

3  See  Parsons  v.  Webb,  8  Greenl,  38  ;  Galvin  v.  Bacon,  2  Fairf.  28  ; 
25  Am.  Dec.  253 ;  Prime  v.  Cobb,  63  Me.  200. 

4  Riford  v.  Montgomery,  7  Vt.  418 ;  Courtis  v.  Cane,  32  Vt.  232  ;  76 
Am.  Dee.  174. 

5  Bryant  v.  Whitcher,  52  N.  H.  158. 

6  Stanley  v.  Gaylord,  1  Cush.  536 ;  48  Am.  Bee.  643 ;  Riiey  v.  Bos- 
ton Water  Power  Co.  11  Cush.  11 ;  Gilmore  v ,  Newton,  9  Allen,  171 ; 
Chapman  v.  Cole,  12  Gray,  341;  71  Am.  Dec.  730 ;  Kinder  v.  Shaw,  2 
Mass.  "03  ;   Bearce  v.  Bowker,  115  Mass.  12;) ;   Moody  v.  Blake,  171 
Mass.  23 ;  19  Am.  Rep.  304. 

7  Barrett  v.  Hill,  3  Hill,  348  ;  Williams  v.  Merle,  11  Wend.  80 ;  25 
Am.  Dec.  604. 

8  Wilson  v.  Crocker,  43  Mo.  218. 

9  Klein  v.  Seibold,  89  III.  540. 

10  Whistler  v.  Forster,  32  Law  J.  Com.  P.  545  ;  Peer  v.  Humphreys, 
2  Ad.  &  E.  161. 

11  Smith  v.  Clews,  33  Hun,  501,  504. 

12  Newburn  v.  Woods,  52  Mich.  610,  611. 

13  See  Fawcett  v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278, 282  ;  Smith  v. 
Clews,  33  Hun,  oul,  504. 

14  Leigh  v.  Mobile  etc.  R.  R.  Co.  5S  Ala.  163, 176;  citing,  1  Smith's 
Leading  Cases  ("th  Am.  ed.),  8t>2, 893  ;  Barnard  v.  Campbell,  .>">  X  Y 
413 ;    S.iltus  r.  Everett,  20  Wend.  207 ;    32  Am.  Dec.  541  ;  Stanley  v. 
Gaylord,  1  Cush.  536  ;  48  Am.  Dec.  643. 

15  See  the  Brig  Sarah  Ann,  2  Sum.  211. 

16  See  The  Brig  Sarah  Ann,  2  Sum.  211.    Same  effect,  according 
to  Bennett's  Benjamin  oa  Sales,  ?  6,  n.  a  ;  Hubbarcl  v.  Bliss,  12  Allen, 
5.:0;    Carpenter  v.  Hale,  8  Gray,  157;   First    Ward    Nat.   Bank    v. 
Thomas,  125  Mass.  278  ;  Cartland  v.  Morrison,  32  Me.  ICO  ;  Webber  v. 
Davis,  44  Me.  147.    Reference  is  also  made  in  note  mentioned  to 
Tome  v.  Dubois,  6  Wall.  551 ;  Boynton  r.  Willard,  10  Pick.  16<> ;   First 
Net.  Bank  v.  Crocker,  111  Mass.  163;  Hassell  v.  Borden,  Hilt.  128; 
Z: -briskie  v.  Smith,  3  Kern.  £22. 

17  See  Bruce  t».  Bishop,  43  Vt.  161, 163. 

18  See  g  CS,  under  chapter  on  THIXG  Soi/n. 

11  Bennett's  Benjamin  on  Sales,  §6.  And  see  Story  on  Sales, 
?9  1^5,  I0/i ;  2  Schouler  on  Personal  Property,  \\  209,  210  ;  2  Kent  Com. 
463  ;  Low  v.  Pew,  108  Mass.  347  ;  11  Am.  Rep.  G57. 

\  172.  Goods  in  another's  wrongful  possession.  —  JVb 
sale  by  wrongful  possessor.  One  wrongfully  in  posses- 
sion of  goods J  cannot  sell  them,2 


I 


251  BONA   FIDE   PURCHASERS.  \   173 

No  transfer,  formerly,  of  goods  adversely  claimed. 
And  it  was  formerly  held  that  no  transfer  could  be  made 
of  goods  held  by  another  under  adverse  claim  of  title,3 
because  such  claim  was  considered  a  mere  chose  in 
action,4  and  therefore5  not  assignable.6 

Different  modern  view.  But  these  cases  seem  to  be 
against  the  modern  authorities  which  proceed  upon  the 
theory  that  the  owner  is  not  bound  to  treat  an  invasion 
of  his  right  as  a  tortious  conversion,  but  may  waive  the 
tort  and  sell  and  convey  a  good  title.7 

1  Possession  in  general :  2  Bouvier  Law  Diet.  (14th  ed.)  349. 

2  1  Corbin's  Benjamin  on  Sales,  §  6,  n.  1,  citing  following  cases: 
Me,.  —  Prime  v.  Cobb,  63  Me.  200.    Mass.  —  Pearce  v.  Bowker,  115  Mass. 
12!) ;  Moody  ?>.  Blake,  1 17  Mass.  23  ;  19  Am.  Rep.  304.    JV.  Y.  —  Saltus  v 
Everett,  20  Wend.  267  ;  32  Am.  Dec.  541 ;  Hoffman  v.  Carow,22  Wend 
285,  2;)0 ;  Brown  v.  Peabod y,  13  N.  Y.  121 ;  Wooster  v.  Sherwood,  25 
N.  Y.  278,  286;  McGoldrick  v.  Willotts,  ">2  N.  Y.  612.    Jff.  J.—  Rucl:- 
man  v.  Decker,  8  Green,  C.  E.  283.  III.  —  Fawcett  v.  Osborn,  32  111.411 ; 
83  .Am.  Dec.  278;  Creighton  v.  Sanders,  89  111.  543.    Fed.  Cts.  —  The 
Fanny,  9  Wheat.  658  ;  Ventress  v.  Smith,  10  Peters,  176. 

3  See  citations  later  given. 

4  See  that  title :  1  Bouvier  Law  Diet.  (14th  ed.)  265.    Consult,  also, 

1  Schouler  on  Personal  Property,  §  11. 

5  See  1  Schouler  on  Personal  Property,  §  72. 

6  1  Corbin's  Benjamin  on  Sales,  §  6,  n.  p.  13 ;  citing,  Gardner  v. 
Adams,  12  Wend.  2C7  ;  Overtoil  v.  Williston,  31  Pa.  St.  100  ;  Dunklin  v. 
Wilkins,  5  Al-u  190  ;  Young  v.  Ferguson,  1  Litt.  298  ;  Stogdelv.  Fugate, 

2  Marsh.  A.  K.  136. 

7  See  Tome  v.  Dubois,  6  Wall.  548  ;  Hall  v.  Robinson,  2  N.  Y.  293; 
criticising  Gardner  v.  Adams,  12  Wend.  2.-I7  ;  Cartland  v.  Morrison,  32 
Me.  190  ;  Webber  v.  Davis,  44  Me.  H7  ;  Carpenter  v.  Hale,  8  Gray,  157  ; 
so  cited,  1  Corbin's  Benjamin  on  Sales,  \  6,  n.  p.  13. 

§  173.  Judicial  salos.  —  Governed  by  general  rule.  It 
is,  as  has  been  shown,1  a  general  rule  of  law,  though 
subject  to  many  exceptions,  that  no  man  can  by  his  sale 
transfer  to  another  the  right  of  ownership  in  a  thing 
wherein  he  has  no  property.2  Nor  is  the  rule  different 
where  the  purchaser  takes  his  title  through  a  judicial 
sale.8 

No  warranty  of  title.  For  in  all  such  sales  the  doc- 
trine of  caveat  emptor  applies,4  since  the  officer  selling 
has  no  power  to  warrant  the  title,  while  the  purchaser 


g  174  BO^'A  FIDE   PURCHASERS.  252 

is  presumed  to  have  examined  the  title,  and  to  know 
what  he  is  acquiring  by  his  purchase.5 

1    See  ?  170,  qn  GENERAL,  DOCTRINES. 

-  McCully  v.  Hardv,  13  111.  App.  631 ;  citing,  Fawcett  v.  Osborn,  32 
111.  411 ;  83  Am.  Dec.  278 ;  Burton  v.  Curyea,40  111.  320  ;  Jones  r.  Nellis, 
41  111.  432  ;  Gibbs  v.  Jones,  46  111.  329  ;  Klein  v.  Seibold,  89  111.  540. 

3  McCully  v.  Hardy,  13  111.  App.  631. 

4  See  Forev.  McKenzie,48  Ala.  115, 117.     Caveat  emptor  in  general : 
See  Lynch  v.  Postelthwaite,  7  Martin  N.  S.  183  ;  as  noted,  Wiufield's 
VTords  and  Phrases,  96  ;  also,  Hargous  v.  Stone,  5  "N".  Y.  73  ;  Broom's 
L"<?al    Maxims,  777  ;   and   Wharton's   Legal   Maxims,  as  quoted,  1 
Abbott's  Law  Diet,  195. 

5  See  McMamis  v.  Keith,  49  III.  388  ;  Bishop  v.  O'Connor,  69  III. 
431 ;  Holmes  v.  Shaver,  78  111.  573 ;  Roberts  v.  Hughes,  81  111.  ICO ; 
O winsrs  r.  Thompson,  3  Scam.  502  ;  England  v.  Clarke,  4  Scam.  486 ;  so 
cited,  McCully  v.  Hardy,  13  111.  App.  631. 

?  174.  Apparent  exceptions. — Several  recognized.  There 
are  several  recognized  exceptions  to  the  general  rule  of 
law,1  that  a  sale  or  pledge  of  a  chattel  by  a  person  who, 
though  he  has  possession,  has  no  right  of  property  and 
no  authority  to  sell,  confers  no  title  as  against  the  true 
owner,  although  the  purchaser  pays  a  valuable  consid- 
eration, or  advances  money  in  good  faith,  and  without 
notice  of  the  title  of  the  true  owner.9 

Currency  and  negotiable  instruments.  Thus,  one  ex- 
ception to  the  rule  that  no  man  can  by  his  sale  trans- 
fer to  another  the  right  of  ownership  in  a  thing  wherein 
he  himself  had  not  the  right  of  property,  occurs  in  the 
instances  of  cash,  bank  bills,  checks,  and  notes  payable 
to  bearer  or  transferable  by  delivery  in  the  ordinal-}' 
course  of  business,  to  a  person  taking  them  bona  fide, 
and  paying  value  for  them.3 

Fraudulent  sales.  Another  class  of  cases  said  to  be 
exceptions  to  the  general  rule  that  "no  one  can  trans- 
fer to  another  a  better  title  than  he  has  himself,"  is 
where  the  owner,  with  the  intention  of  sale,  parts  with 
the  property,  though  under  such  circumstances  of  fraud 
as  would  authorize  him  to  reclaim  it  from  the  vendee,4 
in  which  event  the  title  of  a  bona  fide  purchaser  from 


253  BONA  FIDE   PURCHASERS.  §    174 

the  vendee,  who  was  innocent  and  ignorant  of  the 
fraud,  would  prevail  over  that  of  the  original  vendor.5 ' 

Reserving  title  or  right  of  reclamation.  Some  of  the 
cases  not  following  the  current  of  authority 6  raise  an- 
other exception  in  the  case  of  an  immediate  sale,  under 
which  the  purchaser  takes  possession,  with  a  condition 
annexed,  that  on  his  failure  to  pay  the  price  at  a  future 
day  the  vendor  may  reclaim  the  goods,  or  a  stipulation 
that  the  title  shall  remain  in  him  until  the  price  is  paid,7 
in  which  events  the  title  of  a  sub-purchaser,  without 
notice  of  the  condition  or  stipulation,  is  held  to  prevail 
over  that  of  the  vendor.8 

Conferring  apparent  ownership  or  authority.  Still 
another  class  of  cases  forming  an  exception  to  the  gen- 
eral rule9  is  when  the  owner  of  goods,  by  his  own  act 
or  consent,  has  given  another  such  evidence  of  a  right 
to  sell,  or  otherwise  dispose  of  them,  as  according  to 
the  customs  of  trade  or  the  common  understanding  of 
the  world,  usually  accompanies  the  authority  to  sell  or 
dispose  of  goods;10  and  then,  if  the  person  intrusted 
with  the  possession  of  the  goods,  and  with  the  indicia 
of  ownership,  or  of  authority  to  sell  or  otherwise  dis- 
pose of  them,  violates  his  duty  to  the  owner  and  sells 
to  an  innocent  purchaser,  the  sale  will  prevail  against 
the  right  of  the  owner.11 

1  See  §  170,  on  GENERAL  DOCTRINES,  and  note  to  Williams  v» 
Merle,  11  Wend.  80  ;  25  Am.  Dec.  604,  606. 

2  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 176.    General  rule  is 
that  purchaser  for  value  of  personal  property  takes  no  better  title 
than  his  vendor  :  See  note  to  Fawcett  v.  Osborn,  32  111.  411 ;  83  Am. 
Dec.  278,  285;  citing,  Agnew  v.  Johnson,  62  Am.  Dec.  303,  n.  307  ;  Car- 
michael  v.  Buck,  70  Am.  Dec.  226, 11.  230. 

3  Fawcett  v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278, 281,  282.    And  see 
note  to  Williams  v.  Merle,  11  Wend.  80;  25  Am.  D<><\  604,  (iiO,  611; 
Wright  v.  Solomon,  19  Cal.  64,  79  Am.  Dec.   196,  202;  Putnam  v. 
Lamphier,  36  Cal.  151, 158. 

4  See  citations  in  next  note. 

5  Leigh  »;.  Mobile  etc.  R.  R.  Co.  58  Ala.  165,  178, 179  ;  citing,  Hoff- 
man v.  Noble,  6  Met.  73  ;  39  Am.  Dec.  711 ;  Moody  v.  Blake,  117  Mass. 
23  ;  19  Am.  Rep.  394. 

NKWMAKK  SALKS.  —  22. 


g    175  BONA  FIDE   PURCHASERS.  254 

6  See  Putnam  v.  Lamphier,  36  Cal.  151,  153  ;  Fawcett  ?'.  Osnorn,  32 
111.  411  ;  83  Am.  Dec.  278  ;  Jennings  r.  Gage,  13  111.  610  ;  56  Am.  Dec. 
476,  480  ;  referring  to  Bradeen  v.  Brooks,  21}  Me.  463  ;  Dresser  Manuf. 
Co.  v.  Waterston,  3  Met.  9  ;  and  2  Kent  Com.  497. 

7  See  citations  in  next  note. 

8  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 176, 177 ;  citing,  Sumner 
v.  Woods,  52  Ala.  94  ;  Dudley  v.  Abner,  52  Ala.  572,  apparently  on  va- 
lidity of  condition  between  the  parties.    But  this  exception  to  the 
general  rule,  which  is  founded  on  the  policy  of  the  registration  laws, 
is  confined  to  cases  where  there  has  been  an  actual  sale,  as  well  as  a 
change  of  possession :   Leigh  v.  Mobile  etc.  R.  R.  Co.  58 'Ala.  165,  177; 
citing,  Lehigh  Co.  v.  Field,  8  Watts  &  S.  232  ;  Lester  v.  McDowell,  18 
Pa.  St.  91 ;  Chamberlain  v.  Smith,  44  Pa.  St.  431. 

9  See  Saltus  v.  Everett,  20  Wend.  278  ;  32  Am.  Dec.  541 ;  note  to 
Williams  v.  Merle,  11  Wend.  80  ;  25  Am.  Dec.  611,  612. 

10  Leigh  v.  Mobile  etc.  R.  R.  Co.  53  Ala.  165, 178. 

11  Leigh  ?-.  Mobile  etc.  R.  R.  Co.  58  Ala.  IBs,  178.    And  see  Barstow 
7\  Savage  Mining  Co.  64  Cal.  38S ;  49  Am.  Rep.  705  ;  quoting,  McNeil  r. 
Tenth  Nat.  Bank,  46  N.  Y.  325;  and  distinguishing  Winter  v.  Bel- 
mont  Mining  Co.  53  Cal.  428.    Compare  Arnold  v.  Johnson,  66  Cal.  402. 

§  175,  Ostensible  ownership  or  authority. —  Possession 
alone.  Possession  is  prima  facie  evidence  of  the  owner- 
ship of  all  species  of  personal  property.1  But  the  mere 
possession  of  goods,  without  some  other  evidence  of 
property,  or  of  authority  from  the  owner  to  sell,  will 
not  enable  the  possessor  to  transfer  a  better  title  than  he 
has  himself.2  Whoever  deals  alone  on  the  faith  of  p'os- 
session  of  the  goods,  must  accept  it  as  such,  and  in 
subordination  to  the  paramount  title,  which  would  pre- 
vail over  it,  if  the  possession  was  not  changed  by  the 
transaction  into  which  he  enters.3  And  a  case  does  not 
fall  within  the  exception  unless  the  owner  confers  on 
the  vendor  other  evidences  of  ownership,  or  of  authority 
to  dispose  of  the  goods,  than  mere  possession.4 

Indicia  of  title  also.  But  the  real  owner  suffering  the 
vendor  to  have  the  possession,  and  delivering  to  him 
documentary  evidence  of  title,  thus  enables  him  to  hold 
himself  out  to  the  world  as  the  true  owner,  and  if  any 
loss  happens,5  he  who  has  thus  clothed  the  vendor  with 
the  power  to  deceive  ought  to  bear  the  loss.6 

Apparent  ownership  or  right  of  selling.  The  question 
which  determines  in  such  cases  whether  the  purchaser 


255  BONA  FIDE   PURCHASERS.  \    176 

is  protected  or  not,  is  whether  the  real  owner  has  con- 
ferred on  the  vendor  the  apparent  ownership  or  right 
of  selling.7  For  when  the  owner  of  property  confers 
upon  another  an  apparent  title  to,  or  power  of  disposition 
over  it,  he  is  estopped  from  asserting  his  title  as  against 
an  innocent  third  party  who  has  dealt  with  the  apparent 
owner  in  reference  thereto,  without  knowledge  of  the 
claim  -3  of  t'le  true  owner.8  And  the  owner  of  corporate 
stock  who  voluntarily  delivers  the  indorsed  certificates 
to  a  third  person,  and  thus  allows  him  to  assume  the 
apparent  ownership  of  the  stock,  cannot,  at  least  without 
payment  of  the  debt  secured,  recover  the  same  from  a 
bonafide  pledge  of  the  apparent  owner.9 

1  Leigh  r.  Mobile  etc.  "R.  R.  Co.  58  Ala.  165, 178.    And  see  Fawcett 
?;.  Osborn,32  111.  411;  83  Am.  Dec.  278,  282,  n.  285;  citing,  Avery  v. 
demons,  46  Am.  Deo.  323 ;  Magee  v.  Scott,  55  Am.  Dec.  49  ;  Dick  v. 
Cooper,  04  Am.  Dec.  652. 

2  See  Covill  v.  Hill,  4  Denio,  323  ;  Barstow  v.  Savage  Mining  Co.  64 
Cal.  333,  S'Jl  ;  49  Am.  Kep.  705. 

3  Leigh  v.  Mobile  etc.  R.  It.  Co.  58  Ala.  105, 178.    If  this  was  not 
true,  a  felon  acquiring  possession  by  theft  could,  by  a  sale  to  the  true 
owner  of  his  property,  and  a  naked  bailee,  intrusted  with  possession, 
dispose  of  goods  to  the  prejudice  of  his  principal:   Leigh  v.  Mobile 
etc:  R.  R.  Co.  53  Ala.  165, 17 .>.    Bnt  these  things  they  cannot  do ;   See 
$  176,  on  PuiiciiASK  OK  STOLEN  GOODS,  and  2  184,  on  UNAUTHORIZED 
SALES  BY  BAILEES. 

4  McMahon  v.  Sloan,  12  Pa.  St.  22f> ;  as  cited  in  Leigh  ?>.  Mobile  etc. 
R.  R.  Co.  53  Ala.  165, 17!);  whic-h  reviews  Anrlr  -ws  v.  Dietrich,  14  Wend. 
31  ;  Sultus  v.  Everett,  20  Wend.  267;  32  Am.  Dec.  541;  Pickering  v. 
Busk,  15  East,  38. 

5  See  Saltus  v.  Everett,  20  Wend.  278  ;  32  Am.  Dec.  541 ;  quoted  in 
note  to  Williams  v.  Merle,  25  Am.  Dec.  612. 

6  Fawcett  v.  Osborn,  32  111.  411  ;  83  Am.  Dec.  278,  284.    And  see 
Jennings  v.  Gage,  13  Ul.  610 ;  56  Am.  Dec.  476,  4. .). 

7  See  note  to  Williams  v.  Merle,  25  Am.  Dec.  612. 

8  McNeil  r.  Tenth  Nat.  Bank,  46  N.  Y.  325 ;  as  quoted,  B?rstow  v. 
Savage  Mining  Co.  64  Cal.  333,  39:5 ;  49  Am.  Rep.  705. 

9  Arnold  v.  Johnson,  66  Cal.  402 ;  distinguishing.  Barstow  ?.».  Savage 
Mining  Co.  64  Cal.  383;  4J  Am.  Rep.  705;  referring  to  Ambrose  v. 
Evans,  66  Cal.  74. 

§  176.  Purchase  of  stolon  goods,  —  No  transfer  of  title. 
A  thief  cannot  acquire  any  title  to  stolen  property,  by 
means  of  a  larceny  thereof,  and  as  he  has  no  rightful 
possession  against  the  true  owner,  he  can  confer  no  title 


§    176  BON  A  FIDE   PURCHASERS.  256 

thereto  on  his  vendees.1  And  where  goods  or  other 
kinds  of  property  have  been  stolen,  or  taken  by  robbery, 
no  sale,  or  number  of  sales,  can  affect  the  title  of  the 
true  owner  ; 2  so  that  however  remote  the  buyer  may  be 
in  the  chain  of  transfers,  the  owner  can  recover  the 
goods  from  him.3 

Liability  for  conversion.  Hence  it  may  be  generally 
stated  that  the  consummated  purchase  of  stolen  goods 
is  a  con  version,4  at  least  if  the  buyer  retains  the  property 
and  withholds  it  from  the  true  owner  after  demand,5  or 
otherwise  exercises  direct  dominion  over  it,  as  by  letting 
it  to  a  third  person.6 

Good  faith  of  purchaser.  And  it  is  immaterial  that 
the  purchase  is  made  in  the  best  of  faith,  for  full  value, 
and  without  knowledge  or  notice  of  the  theft,7  as  in  the 
case  of  a  stolen  horse  bought  at  public  auction,8  in  utter 
ignorance  of  the  larceny  or  the  owner's  rights;9  for' 
though  a  party  who  honestly  and  fairly,  and  for  a 
valuable  consideration,  buys  goods  of  one  who  has 
stolen  them,  is  not  liable  to  be  charged  criminally,  be- 
cause innocent  of  any  intentional  wrong,  yet  as  he  ac- 
quired no  rights  under  his  purchaser,  the  owner  may 
avail  himself  against  him  of  all  civil  remedies  provided 
by  law  for  the  protection  of  property.10  Thus,  it  has 
been  held  that  where  stock  of  a  corporation  stands  on 
the  books  in  the  name  of  one  party,  and  the  stock  is 
owned  by  another,  from  whom  the  certificates,  though 
properly  indorsed,  are  stolen  without  the  fault  of  such 
other,  the  thief  can  pass  no  title  to  an  innocent  pur- 
chaser of  the  certificates,  and  the  owner  may  pursue 
his  property  though  it  has  been  still  further  transferred.11 

Character  of  larceny.  Nor  does  it  matter  whether  the 
possession  of  the  goods  be  obtained  by  stealth,  as  in 
larceny  at  common  law  which  required  asportation  by 
trespass,  or  they  are  intrusted  to  the  party  as  in  statu- 


257  BONA  FIDE  PURCHASERS.  §    177 

tory  larceny,  like  that  committed  by  a  farm  laborer  who 
sold  his  employer's  wheat  which  he  had  persuaded  his 
master's  wife  to  deliver  to  him,12  provided  the  owner 
did  not  intend  to  part  with  the  title,  so  as  to  make  the 
offense  that  of  obtaining  goods  by  false  pretenses.13 

1  See  Breckenridge  v.  McAfee,  54  Ind.  141 ;  Hoffman  v.  Carow,  20 
Wend.  21 ;  Cundy  v.  Lindsay,  Law  R.  3  App.  C.  463  ;  24  Eng.  Hep.  345  ; 
Galvin  v.  Bacon,  2  Fairf.  30,  31 ;  25  Am.  Dec.  25S  ;  note  to  Williams  v. 
Merle,  11  Wend.  80  ;  25  Am.  Dec.  G04,  606. 

2  Parham  v.  Riley,  4  Cold.  9.    It  is  well  known  to  be  the  general 
rule  that  a  thief  acquires  no  title  to  the  stolen  property  and  that  he 
can  pass  none :  Barstow  v.  Savage  Mining  Co.  64  Cal.  388 ;  49  Am. 
Rep.  705. 

3  See  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  366  :  2 
Schouler  on  Personal  Property,  §  18. 

4  Sharp  v.  Parks,  48  111.  511. 

5  Barrett  v.  Warren,  3  Hill,  348.    See  "  Conversion  by  Purchase," 
15  Am.  Law  Rev.  363,  3P6,  377. 

6  Gilmore  v.  Newton,  9  Allen,  171. 

7  See  Lee  v.  Bayes,  IS  Com.  B.  599  ;  "  Conversion  by  Purchase," 
15  Am.  Law  Rev.  363,  366 ;   2  Schouler  on  Personal  Property,  §  19. 
Bonn,  fide  purchaser  of  stolen  mining  stock  :  Barstow  v.  Savage  Min- 
ing Co.  64  Cal.  388  ;  49  Am.  Rep.  705.    Property  given  in  exchange  for 
stolen  goods  not  recoverable  from  bona  fide  purchaser:  Sadler  v. 
Lewers,  42  Ark.  148. 

8  Lee  v.  Bayes,  18  Com.  B.  599. 

9  Robinson  v.  Shipworth,  23  Ind.  311. 

10  Galvin  v.  Bacon,  2  Fairf.  30,  31 ;  25  Am.  Dec.  258. 

11  Barstow  v.  Savage  Mining  Co.  64  Cal.  388  ;  49  Am.  Rep.  705  ;  dis- 
tinguishing, Winter  v.  Belmont  Mining  Co.  53  Cal.  428. 

12  Breckenridge  v.  McAfee, 54  Ind.  141.    What  constitutes  larceny : 
See  Mowry  v.  Walsh,  8  Cowen,  238. 

13  Florence  Sewing  Machine  Co.  v.  Warford,  1  Sweeny,  433  ;  Wil- 
liams r.  Given,  6'  Gratt.  268.    See  "  Conversion  by  Purchase,"  15  Am. 
Law  Rev.  363,  367,  referring  further  to  misleading  views  in  Andrews 
v.  Dieterioh,  14  Wend.  34,  and  Mowry  v.  Walsh,  8  Cowen,  238,  and  to 
correct  rulings  in  Malcolm  v.  Loveridge,  13  Barb.  372  ;  Keyser  v.  Har- 
beck,  3  Duer,  373. 

\  177.  Liability  of  agent  or  bailee,  —  Sale  by  auctioneer 
or  broker.  Even  the  auctioneer  who  receives  and  sells 
stolen  goods,  and  delivers  the  proceeds  to  the  thief,  is 
liable  in  trover  to  the  true  owner1  without  demand,  al- 
though such  auctioneer  did  not  know  or  have  reason  to 
suspect  that  the  goods  were  stolen  ; 2  and  the  same  is 
true  of  the  broker  who  sells  on  commission  stolen 
stocks  brought  to  him  by  a  stranger.3 


§    178  BOX  A  FIDE   PURCHASERS.  258 

Transfer  by  agent  or  bailee.  So  if  the  bailee  of  stolen 
goods  sells  them,  though  in  good  faith,  he  cannot  escape 
liability  to  the  true  owner  for  their  value.4  But  there 
is  110  such  liability  in  the  case  of  stolen  negotiable  in- 
struments like  interest  coupons  of  United  States  bonds, 
on  the  part  of  one  who  in  good  faith  and  without  gross 
negligence  received  them  as  an  agent  for  exchange 
from  a  party  to  the  theft,  and  on  transferring  them  by 
delivery  paid  the  proceeds  to  his  employer,  without 
benefit  to  himself  and  without  demand  or  notice.5 

Return  to  depositary.  And  there  is  no  liability  in 
conversion  to  the  owner  on  the  part  of  a  mere  naked 
bailee  who  voluntarily  returns  stolen  property  to  the 
depositor,  as  an  innkeeper  who  thus  redelivers  a  horse 
which  he  knew  to  have  been  stolen.6 

1  See  Alexander  v.  Swackhamer,  105  Ind.  81  ;  55  Am.  Rep.  ISO, 
185 ;  quoting,  Hills  v.  Snell,  104  Mass.  173  ;  6  Am.  Rep.  216. 

2  Hoffman  v.  Carow,  20  Wend.  21 ;   22  Wend.  2S5.    And  see  2 
Schouler  on  Personal  Property,  \  in  ;  1  Corbin's  Benjamin  on  Hales, 
?  rt.  n.  2  ;  citing,  also.  Knapp  r.  Hobbs,  50  N.  IT.  47fi  ;  Dudley  v.  Haw- 
ley,  40  Barb.  397  ;  Cobb  r.  Dows,  10  N.  Y.  335  ;  Sharp  v.  Parks,  48  111. 
511 ;  Story  on  Agency,  £  312. 

3  Bercich  v.  Marye,  9  Nev.  312. 

4  Kramers.  Faulkner.  9  Mo.  App.  34  ;  following,  Koch  r.  Branch, 
44  Mo.  542. 


Cal.  428 ;  disting 
49  Am.  Rep.  705. 


N. 


N.  Y.  477.  And  consult  1  Corbin's  Benjamin  on  Soles,  { 6,  n. '_' ;  citing, 
further,  on  depositary's  return  of  stolen  goods  to  depositor,  Hill  v. 
Hays,  38  Conn.  532  ;  Dudley  v.  Hawley,  40  Barb.  397. 


\  178.  Markets  overt. — Nature.  The  ancient  excep- 
tion, which  still  subsists  in  England,  to  the  rule  that 
no  purchaser,  however  innocent,  can  obtain  title  to 
stolen  goods,  related  to  transfers  in  markets  overt,1 
which  comprised  those  open  markets  or  fairs  where  the 


259  BONA  FIDE  PURCHASERS.  $    178 

owner  was  supposed  to  have  the  amplest  opportunity 
to  make  pursuit  of  his  property,  and  prevent  its 
sale.2 

Place  of  operation.  Custom  sanctioned  their  estab- 
lishment in  the  country  at  designated  spots,  and  their 
operation  thereon  particular  days;3  while  within  the 
ancient  limits  of  London,4  now  comprising  the  business 
quarter  called  the  city,5  their  protective  function  was 
extended  on  every  week-day  to  every  shop  in  this 
region,  for  its  special  class  of  goods.6 

Requisite  of  good  faith.  Wherever  situated,  the 
market  was,  and  still  is,  required  to  be  open,  public, 
and  legally  constituted,7  while  the  time,  place,  and 
manner  of  sale  were  subject  to  special  regulations, 
mainly  to  insure  good  faith;8  though  this  would 
ordinarily  be  presumed  from  the  character  of  these 
markets,  wThere  those  who  had  lost  property,  by  theft 
or  otherwise,  could  be  present  and  make  known  their 
loss,  while  every  assurance  of  good  faith  was  given  by 
the  publicity  of  the  transaction.9 

1  See  2  Blackst.  Com.  449  ;  2  Bouvier  Law  Diet.  (14th  ed.)  105  ;  2 
Sohouler  on  Personal  Property,  ?  19 ;  Hilliard  on  Sales  (1st  ed.),  23 ; 
Fawcett  v.  Osborn,  32  111.  425  ;  83  Am.  Dec.  278, 283  ;  Gundy  v.  Lindsay, 
Law  R.  3  App.  C.  463  ;  24  Eng.  Rep.  345.    Innocent  sale  of  stolen  cattle 
for  thief  by  public  salesmaster  :  Delaney  v.  Wallis,  14  Law  R.  Ir.  31 ; 
noted,  32  Week.  R.  Dig.  213. 

2  Crane  v.  London  Dock  Co.  33  Law  J.  Q.  B.  224  ;  "  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,368;  note  to  Williams  v.  Merle,  25 
Am.  Dec.  607. 

3  Benjamin  v.  Andrews,  5  Com.  B.  N.  S.  299  ;  27  Law  J.  M.  C.  310. 

4  Anon.  12  Mod.  521. 

5  See  Lee  v.  Bayes,  18  Com.  B.  599,  601. 

6  See  2  Blackst.  Com.  449;  2  Bouvier  Law.  Diet.  (14th  ed.)  105;  "  Con- 


Market.  E. ;  Lyons  v.  De  Pass,  11  Ad.  &  E.  326  ;  Crane  v.  The  Lon- 
don Dock  Co.  5  Best  &  Smith,  313  ;  33  Law  J.  Q.  B.  224.  And  consult 
Campbell  on  Sales,  55;  2  Schouler  on  Personal  Property,  §  19  ;  note 
to  Williams  v.  Merle,  25  Am.  Dec.  607. 

7    Lee  v.  Bayes,  18  Com.  B.  599 ;  Benjamin  v.  Andrews,  5  Com.  B. 
N.  S.  299  ;  27  Law  J.  M.  C.  310. 


§    179  BOXA  FIDE   PURCHASERS.  260 

8  See  Crane  r.  London  Dock  Co.  5  Best  <fe  Smith,  313  ;  33  La\v  J. 
Q.  B.  224  ;  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  3f>8  ;  2 
Blackst.  Com.  450;  2  Bouvier  Law  Diet.  (14th  ed.)  105;  note  to  Wil- 
liams r.  Merle,  25  Am.  Dec.  608. 

9  Fawcett  v.  Osborn,  32  111.  411,  426  ;  83  Am.  Dec.  278,  283. 

§  179 .  Extent  of  exemption.  —  Restrictions  on  protection. 
The  unassailable  title  acquired  by  a  purchaser  of  stolen 
goods  in  market  overt  in  England  does  not  cover 1  sales 
by  sample,2  nor  probably  sales  to  a  shopkeeper  dealing 
in  the  kind  of  goods  bought  by  him,  though  made 
within  the  precincts  of  the  city  of  London,3  nor  sales  at 
auction  in  a  horse  repository  outside  such  ancient 
limits.4 

Transfer  spending  conviction.  And  the  validity  of  titles 
thus  acquired  was  affected  and  apparently  endangered 
by  enactments,  providing  that  upon  the  conviction  of 
the  thief  the  restoration  of  the  goods  to  the  owner 
should  be  ordered.5  But  these  enactments  were  con- 
strued, not  as  invalidating  all  transfers  by  others  than 
the  owner,  but  as  impliedly  requiring  the  conviction  of 
the  thief  before  a  civil  action  could  be  maintained.6 
Hence,  the  bon a  fide  purchaser  in  market  overt  was 
protected  until  such  conviction,  and  could  meanwhile 
dispose  of  the  goods,  even  after  notice  of  the  robbery.7 
The  basis  of  this  view  was  that  pending  the  prosecution 
the  title  was  suspended,8  and  that  the  owner  did  not 
become  re-invested  therewith  until  the  conviction  of  the 
offender.9 

Liability  of  seller  and  of  purchaser  out  of  market  overt. 
The  privilege  of  market  overt  does  not  extend  protec- 
tion, however,  to  the  innocent  seller  as  well  as  the  pur- 
chaser of  goods;10  nor  is  there  a  similar  exemption 
from  liability  on  the  part  of  an  innocent  purchaser,  not 
in  market  overt,  before  the  prosecution  of  the  thief,11  as 
the  asserted  doctrine  that  a  civil  action  was  not  main- 
tainable until  the  prosecution  of  the  offender  has  been 


261  BON  A  FIDE   PURCHASERS.  g    180 

held  inapplicable  where  the  action  was  against  a  third 
party.12 

1  According  to   Bennett's  Benjamin  on  Sales,  and   1  Corbin's 
Benjamin  on  Sales,  §2 10,  14.    And  see  note  to  Williams  v.  Merle,  25 
Am.  Dec.  608. 

2  Hill  r.  Smith,  4  Taunt.  532  ;  approved  in  Crane  r.  London  Dock 
Co.  Law  J.  33  Q.  B.  224 ;  5  Best  &  Smith,  313.    And  see  Story  on  Sales, 
#  191  ;  Bailiffs  etc.  v.  Ditson,  6  East.  438  ;  Town  Commrs.  v.  Woods, 
I.  R.  11C.L.  506 

3  See  Crane  ?>.  London  Dock  Co.  5  Best  &  Smith,  313 ;  questioning 
counter-ruling  in  Lyons  v.  Do  Pass,  11  Ad.  &  E.  326. 

4  Lee  v.  Bayes,  18  Com.  B.  599.    And  see  on  sales  of  horses  in 
market  overt,  Joseph  v.  Adkins,  2  Stark.  76 ;  Browning  v.  Magill,  2 
Har.  &  J.  308  ;  2  Blackst.  Com.  450. 

5  Stats.  21  Hen.  8,  ch.  11  ;  7,  8  Geo.  4,  ch.  29,  ?  57;  re-enacted  and 
enlarged  by  stats.  24,  25  Viet.  ch.  96,  §  100.    Excepting  negotiable  se- 
curities from  its  operation:   See  Story  on  Sales,  \  194  ;   Bennett's 
Benjamin  on  Sales,  2  11 ;  1  Corbin's  Benjamin  on  Sales,  §  11 :  Camp- 
bell on  Sales,  56. 

6  "  Conversion  by  Purchase,"  15  Am.  Law  Bev.  363,  368. 

7  See  Horwood  ?'.  Smith,  2  Term  Rep.  750.    Similar  views  where 
goods  obtained  by  false  pretenses:  See  Moyce  v.  Newington,  Law 
R.  4  Q.  B.  D.  32  ;  Lindsay  v.  Gundy,  Law  R.  1  Q.  B.  D.  347,  357. 

8  Bonn  fide  purchaser  of  stolen  blasts  sold  in  market  overt,  held 
not  entitled  to  counter-claim  on  action  by  original  owner,  for  cost  of 
their  keep  between  such  sale  and  the  conviction  of  the  thief  :  Walker 
v.  Matthews,  Law  R.  8  Q.  B.  D.  101) ;  same  case  with  note  in  21  Am. 
Law  Reg. 

9  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  36S.    It  has 
been  held  that  the  title  then  becomes  re-invested  although  no  writ  or 
order  of  restitution  has  been  made  by  the  court :  Soattergood  ?;. 
Sylvester,  15  Q.  B.  50G ;  Law  J.  1!)  Q.  B.~447:  Bennett's  Benjamin  on 
Sales,  §  11,  n.  z ;  referring,  also,  to  Peer  v.  Humphrey.  2  Ad.  <fe  F.  4r>5  ; 
Queen  v.  Horan,  I.  R.  6  C.  L.  293 ;  Reg.  v.  Stancliffe,'ll  Cox  C.  C.  318. 

10  Ganley  v.  Ledwidge,  I.  R.  10  C.  L.  33  ;  stated,  Bennett's  Benja- 
min on  Sales,  £  8  a  ;  1  Corbin's  Benjamin  on  Sales,  §  8. 

11  See  citations  in  next  note. 

12  White  v.  Spettigue,  13  Mees.  <fe  W.  603.    Relying  upon  Stone  v. 
Marsh,  6  Barn.  &  C.  551 ;  Marsh  v.  Keating,  1  Bing.  N.  C!.  198.    Over- 
ruling Gimson  v.  Woodfall,  2  Car.  <fe  P.  41 ;  Peer  v.  Humphreys,  2 
Ad.  &  K.  495 ;  4  Nev.  &  M.  430.    Confirmed,  Lee  ?'.  Bayes,  18  Corn.  B. 
599.    See  Bennett's  Benjamin  on  Sales,  and  1  Corbin's  Benjamin  on 
Sales,  §  13  ;  stating,  also,  Wells  v.  Abraham,  Law  R.  7  Q.  B.  554,  and 
Ex  parte  Ball,  Law  R.  10  Ch.  D.  667;  arid  referring,  also,  to  Midland 
Ins.  Co.  v.  Smith,  Law  R.  6  Q.  B.  D.  561,  where  all  the  cases  are  re- 
viewed.   Consult  further,  Campbell  on  Sales,  57 ;  Story  on  Sales, 
g  195 ;  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  303,  369. 

§  180.  Not  recognized  in  this  country,—  Extent  of  re- 
pudiation.— The  Saxon  institution  of  markets  overt  has 
never  been  in  vogue  in  this  country,  and  its  existence 
and  effect  have  been  expressly  repudiated  in  various 


§    180  BONA  FIDE   PURCHASERS.  262 

States.1  It  has  failed  of  recognition2  in  Maine,3  Ver- 
mont,4 Xew  Hampshire,5  Massachusetts,6  Xew  York,7 
Pennsylvania,8  Maryland,9  Xorth  Carolina,10  Missis- 
sippi,11 Tennessee,12  Ohio,13  Illinois,14  and  Indiana.15 

Sales  under  execution.  Many  efforts  have  been  made 
to  have  the  courts  declare  the  doctrine  of  sales  in 
market  overt  applicable  to  sales  of  chattels  under  exe- 
cution ;16  but  it  is  said  that  with  unvarying  unanimity 
the  rule  has  been  sustained  that  a  sale  of  chattels,  under 
a  writ  against  one  person,  can  have  no  operation  upon 
the  title  of  another  person,  and  that  the  purchaser  is 
always  liable  to  a  suit  by  the  true  owner.17  Yet  there 
are  decisions  of  an  apparently  opposite  tendency  as  to 
judicial  sales,  etc.18 

1  See  2  Kent  Com.  (12th  ed.)  325  ;  2  Schouler  on  Personal  Prop- 
erty, ?  n ;  Ventress  ??.  Smith,  10  Peters.  161  ;   "  Conversion  by  Pur- 
chase," 15    Ym.  Law  Kev.  363,  360  ;  Fawoett  v.  Osborn,  32  111.  411  ;  83 
Am.  Dec.  273,  283  ;  note  to  Williams  v.  Merle.  25  Am.  Dec.  601). 

2  According  to  Bennett's  Benjamin  on  Sales,  ?  7  "./;  2  Schoulpr 
on  Personal  Property,  ?  19,  n.  2,  p.  21.    And  see  1  Corhin's  Benjamin 
on  Sales,  ?  8,  n.  5 ;   Story  on  Sales,  ?  19D,  n.  3 ;  2  Bouvier  Law  Diet. 
(14th  ed.)  105. 

3  Coombs  v.  Gorden,  59  Me.  112. 

4  Heacock  r.  Walker,  1  Tyler,  341 ;  Griffith  r.  Fowler,  18  Vt.  300. 

5  Bryant  v.  Whitcher,  52  X.  H.  158. 

6  Dame  v  Baldwin,  8  Mass.  521 ;  Towne  v.  Collins,  14  Mass.  500. 

7  Wheelwright  r.  Depeyster,  I  Johns.  ISO;  8  Am.  Doc.  34">:  Hoff- 
man v.  Carow,  22  Wend.  285  ,  S.  C.  20  Wend.  21 ;  Mowrey  r.  Walsh.  8 
Cowen,  238. 

8  Easton  r.  Worthington,  5  Se^g.  <fc  R.  120  ;  ITosack  r.  Weave".  1 
Yeates,  478 ;  Hardy  v.  Metzgar,  2  Yeates,  347  :  Quiiin  v.  Davis.  73  Pa. 
St.  15. 

9  Browning  v.  Magill,  4  Har.  <fe  J.  308. 

10  Black  v.  Jones,  64  N.  C.  318. 

11  Ketchum  v.  Brennan,  53  Miss.  596. 

12  Dawson  v.  Susong,  1  Ileisk,  243. 

13  Roland  v.  Gundy,  5  Ohio,  203. 

14  See  Fawcett  v.  Osborn,  32  111.  411  ;  83  Am.  Dec.  273,  283. 

15  See  Robinson  v.  Skipworth,  23  Jncl.  311. 

1!>  See  citations  in  next  note.  Transfer  of  title  by  sheriff's  sale  : 
See  note  to  Williams  v.  Merle,  25  Am.  Dec.  610. 

17  Freeman  on  Executions,  \  335  ;  citing,  McClanahan  r.  Barrow, 
27  Minn.  664  ;  Chambers  v.  Lewis,  28  N.  Y.  454  ;  Farrant  v.  Thompson, 
5  Barn.  &  Aid.  820 ;  Buffum  v.  Deane,  b  Cush.  41 ;  Shaw  v.  Tumbriclge, 


263  BOXA    FIDE   PURCHASERS.  ?g    181-182 

2  Black.  W.  1064  ;  Stone  v.  Ebberly,  1  Bay,  317;  Champney  v.  Smith, 
15  Gray,  212;  Sheanck  v.  Ifubcr,  6  Binn.  2  ;  Symonds  v.  Hull,  37  Me. 
351 ;  Austin  ?-.  Tilden,  14  Vt.  327;  lEomesley  v.  Hague,  4  Jones,  481 ; 
Williams  v.  Miller,  16  Conn.  144  ;  Bartholomew  v.  Warren,  32  Conn. 
202. 

IS  See  Samms  v.  Allexander,  3  Yeates,  268;  Forsythe  v.  Ellis,  4 
Marsh.  J.  J.  2!)8 ;  The  Monte  Allegre,  9  Wheat.  616;  Heacock  v. 
Walker,  1  Tyler,  341 ;  Story  on  Sales,  §  199,  n. 

§  181.  Lost  chattels.  — ^Vb  title  in  purchaser.  If  the 
purchaser  of  a  chattel  does  not  buy  it  in  market  overt,1 
and  if  it  turns  out  that  the  chattel  has  been  found  by 
the  person  who  professed  to  sell  it,  the  purchaser  will 
not  obtain  a  title  good  as  against  the  real  owner,2  any 
more  than  if  it  turned  out  that  the  chattel  had  been 
stolen  by  such  person.3 

Certificates  of  stock.  And  the  principle  that  the  finder 
of  goods  holds  them  in  subordination  to  the  owner's 
'rights,  and  has  no  title  to  confer  upon  a  bonafide  buyer,4 
has  been  applied  to  the  case  of  lost  certificates  of  stock 
in  a  mining  corporation  indorsed  by  the  owner,  so  as  to 
hold  that  a  bona  fide  purchaser  acquires  no  title  where 
the  shares  are  transferable  on  the  books  of  the  company 
by  indorsement  and  surrender  of  the  certificate.5 

1  See  preceding  sections  of  book  relating  to  markets  overt. 

2  Cundy  v.Lindsay,  Law  R.  3  App.C.  463;  24  Eng.  Rep.  345.    Rights 
of  finder  of  lost  chattels:  2  Schouler  on  Personal  Property,  g  14  ;  cit- 
ing, Bridges  ?'.  Hawkesworth,7  Eng.  Law  &  Eq.  424;  15  Jur.  1029; 
McAvoy  v.  Medina,  11  Allen,  548 ;  2  Kent  Com.  356. 

3  Cundy  v.  Lindsay,  Law  R.  3  App.  C.  463 ;   24  Eng.  Rep.  345. 
Estrays  etc.,  and  their  ownership :  2  Schouler  on  Personal  Property, 
§  17.    B'fita  n<le  purchaser  of  strayed  cattle  not  protected  :  Mann  v. 
Ark.  etc.  Co.  24  Fed.  Rep.  261. 

4  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  375. 

5  Sherwood  v.  Meadow  Valley  Mining  Co.  50  Cal.  412.    Compare 
as  to  stolen  certificates,  Barstow  v.  Savage  Mining  Co.  64  Cal.  388  ;  49 
Am.  Rep.  705;  distinguishing,  Winter  v.  Belrnont  Mining  Co.  5:H'al. 
428.    Lost  negotiable  instruments  in  general :  2  Schouler  on  Personal 
Property,  £  16. 

£  182.  Salos  by  trespassers.—  Chattels  obtained  by  rob- 
bery.  Where  chattels  are  obtained  by  robbery  instead 
of  larceny,  their  transfer  can  confer  no  title  upon  any 
subsequent  purchaser.1 


§183  BONA  FIDE  PURCHASERS.  264 

Severed  objects.  The  same  rule  applies  to  any  seizure 
by  force  or  without  right;2  and  thence  arises  the  liabil- 
ity in  trover  or  like  remedy  of  bona  fide  purchasers 
claiming  through  a  sale  by  trespassers  of  severed  earth,3 
logs,4  wood,5  timber,6  wild  berries,7  and  posts  used  to 
fence  the  line  of  a  railroad.8  Thus,  the  owner  of  timber 
cut  upon  his  land  by  a  trespasser  may  recover  it  in  an 
action  for  the  specific  propert}^  although  it  has  been 
converted  by  the  trespasser  into  railroad  ties,  and  sold 
to  a  bona  fide  purchaser.9 

Mistake.  And  it  is  immaterial  in  regard  to  the  inva- 
lidity of  sales  by  trespassers,  and  the  want  of  title  of 
bona  fide  purchasers,  that  the  property  was  taken  by 
mistake,  as  in  the  case  of  potash  thus  removed  from  a 
warehouse,10  or  of  a  gold  coin  of  private  issue  passed  for 
less  than  its  value.11 

1  See  Parham  r.  Riley,  4  Cold.  9 ;  "Conversion  by  Purchase,"  15 
Am.  Law  Rev.  363,  369. 

2  See  citations  in  succeeding  notes. 

3  Riley  v.  Boston  Water  Power  Co.  11  Cush.  11. 

4  Nesbitt  v.  St.  Paul  Lumber  Co.  21  Minn.  491. 

5  Whitman  Gold  etc.  Mining  v.  Tritle,  4  Nev.  494. 

6  Strubbee  v.  Trustees,  78  Ky.  481. 

7  Freeman  v.  Underwood,  66  Me.  229. 

8  St.  Louis  etc.  R.  Co.  v.  Haulbrunner,  59  111.  152.    See  "Conver- 
sion by  Purchase,"  15  Am.  Law  Rev.  363,  369,  giving  nearly  all  these 
illustrations. 

9  Strubbee  v.  Trustees,  78  Ky.  481. 

10  Williams  v.  Merle,  11  Wend.  80  ;  25  Am.  Dec.  004. 

11  Chapman  r.  Cole,  12  Gray,  141 ;  71  Am.  Dec.  739.    See  "Conver- 
sion by  Purchase,"  15  Am.  Law  Rev.  363,  370. 

g  183.  Illegal  levy  and  sale,  —  Officer's  levy  on  stranger's 
goods.  Where  an  officer  makes' an  illegal  levy  upon  the 
goods  of  a  stranger  to  the  process,1  he  has  no  title  to 
transfer.2 

Execution  against  wrong  person.  Hence,  a  purchaser 
acquires  no  title  to  personal  property  which  he  buys 
at  sheriff's  sale,3  unless  it  belongs  to  the  judgment 


265  BOXA    FIDE 

debtor;4  and  a  purchaser  of 
on  execution  against  another,  is  l 
in  trover,5  where  such  buyer  takes 
custody.6 

Exempt  property.  The  same  doctrine  applies  to  a 
forced  sale  of  goods  exempt  from  seizure  by  creditors.7 
But  it  has  been  held  that  the  private  purchaser  of  goods 
exempt  from  execution  obtains  a  title  unaffected  by 
subsequent  admissions  or  acts  of  the  debtor,  and  which 
overrides  the  lien  of  any  subsequent  attachment  levy, 
and  indeed  of  any  previous  levy  unless  it  be  for  unpaid 
purchase  money.8 

Void  sales,  etc.  The  purchaser,  however  remote, 
gains  no  title,  but  is  liable  in  conversion  where  he 
claims  through  a  sale  by  an  administrator  under  a 
void  order  of  court,9  and  the  same  doctrine  has  been 
applied  to  a  sale  of  a  vessel,  void  for  want  of  ncace  to 
some  of  the  part  owners,10  or  of  captured  coffee  sold 
before  the  regular  condemnation  of  the  prize.11  But 
there  is  a  distinction  made  where  there  is  mere  irregu- 
larity in  the  proceedings,  and  the  process  is  not  void,12 
but  voidable.13 

1  See  Griffith  v.  Fowler,  18  Vt.  390;  "Conversion  by  Purchase," 
15  Am.  Law  Rev.  363,  36:).    Persons  selling  under  process  of  law  in 
England. :  See  Campbell  on  Sales,  71,  et  seq. 

2  See  authorities  cited  in  next  paragraph.    Liability  of  sheriif  for 
taking  goods  of  stranger  to  the  process :  2  Greenleaf  on  Evidence, 
2  5.)7. 

3  Sheriff  in  general :  2  Bouvier  Law  Diet.  (I4th  ed.)  518.    Sheriffs' 
sal  js  i.i  England :   Campbell  on  Sales,  72. 

4  See  citations  in  succeeding  notes. 

5  According  to  Bennett's  Benjamin  on  Sales,  \  17,  n.  p,  citing 
authorities  next  given. 

6  Symonds  r.  Hall,  37  Me.  354,  357,  358  ;  Coombs  v.  Gorden,  53  Me. 
Ill ;  Griffith  v.  Fowler,  18  Vt.  3^0;  Sanborn  v.  Kittridge,  20  Vt.  G-JO; 
Bryant  v.  Whitcher,  32  N.   H.  158  ;  Buffum  v.  Deane,  8  Cush.  41 ; 
Champney  v.  .Smith,  15  Gray,  512  ;  Johnson  v.  Babcork,  S  Allen,  58:) ; 
Williams  v.  Miller,  16  Conn.  144  ;  Bartholomew  v.  Warren,  32  Conn. 
102  ;  Wheanck   v.  Huber,  6  Binn.  2  ;   Homesley  v.   Hogue,  4  Jones 
(N.  C.)48l;  Stone?'.  Elberly,  1  Bay, 317  ;  Ajendale  v. Morgan ,5 Sueed, 
703;  Baggs  v.  Fowler,  16  Cal.  559;  Burke  v.  McWhirter,  35  Up.  Can. 
Q.  B.  1 ;  Kirby  v.  Cahill,  6  Up.  Can.  Q.  B.  (O.  S.)  510. 

NEWMARK  SALKS.  —  23. 


I   184  BOXA   FIDE   PURCHASERS.  266 

7  See  Cooper  v.  Newman,  45  N.  II.  330  ;  "Conversion  by  Pur- 
chase," 15  Am.  Law  Rev.  363,  :>6J.    And  consult  Williams  r.  Miller,  16 
Co  :in.  143. 

8  Buckley  v.  Wheeler,  52  Mich.  1. 

9  Wells  ?'.  Raglan,  1  Swan,  501.    So  in  the  case  of  property  donated 
by  the  decedent :   Harris  v.  Saunders,  1  Strob.  Kq.  ;xx). 

10  Miller  v.  Thompson,  60  Me.  322. 

11  Wheelwright  v.  Depeyster,  1  Johns.  471  ;  3  Am.  Dec.  345.    See 
"  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  375,  376,  giving 
these  illustrations. 

12  Process  in  general :  2  Bouvier  Law  Diet.  (14th  ed.)  379. 

13  See  Farrant  v.  Thompson,  5  Barn.  &  Aid.  826  ;  Lock  v.  Selwood, 
1  Q.  B.  736. 

§  184.  Unauthorized  sales  by  bailees.  —  In  general.  A 
bailee  intrusted  with  personal  property  has  no  absolute 
title  thereto  which  he  can  transfer,1  and  his  sale  with- 
out authority  or  in  material  excess  of  that  given  is  a 
conversion,2  which  can  confer  no  rights  of  ownership 
even  upon  a  bonafide  purchaser.3 

In  various  kinds  of  bailment.  Such  is  the  case 
whether  the  bailment  be  for  use,4  for  hire,5  for  loan,6 
for  custody,7  for  transportation,8  or  for  the  performance 
of  work  upon  the  object  intrusted.9 

bailment  with  privilege  of  purchase.  Even  where  the 
bailee  has  the  privilege  of  purchasing,10  it  has  generally 
been  considered  that  such  option  to  purchase  does  not, 
before  it  has  been  exercised,  give  him  any  greater 
power  to  dispose  of  the  goods  than  an  ordinary  bailee  ; n 
and  this  principle  applies  to  a  sale  by  the  hirer  of  a  bill- 
iard table  detained  by  the  purchaser  after  demand  so 
as  to  constitute  a  conversion,12  or  of  a  yoke  of  cattle  de- 
livered to  use  and  return,  with  privilege  to  pay  for  and 
keep,  which  the  owner  could  follow  and  peaceably 
retake.13 

1  See  Galvin  v.  Bacon,  2  Fairf.  28,  31 ;  25  Am.  Dec.  258. 

2  See  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  S63, 371.    Sales 
and  pledges  by  bailees  and  agents :  See  note  to  Williams  v.  Merle, 
25  Am.  Dec.  615. 

3  See  Galvin  v.  Bacon,  2  Fairf.  28,  31 ;  25  Am.  Dec.  258;  Maycs  ?'. 
Bruton,  1  Tex.  App.  (Civ.  Cas.)  \  699.    Bailment  of  jewelry :  Smith  v. 
Clews,  33  Hun,  501 ;  Levi  v.  Booth,  58  Me.  o05  ;  42  Am.  Rep.  332. 


2f)7  BONA   FIDE   PURCHASERS.  g   185 

^  4    GiJmoro  r.  Newton,  9  Allen,  171  ;  Riford  v,  Montgomery,  7  Vt. 

5  Donald  r.  Arnold.  28  Tex.  97  ;  Sanborn  v.  Colman,  6  N.  H.  14. 
When  no  larceny  in  such  a  case  :  Morrison  v.  State,  4  Tex.  Law  Rev. 

28;). 

6  Roland  v.  Gundy,  5  Ohio,  202  ;  Heacock  v.  Walker,  1  Tyler,  338. 

7  Stanley  v.  Gay  lord,  1  Cush.  536;   48  Am.  Dec.  643;   Hartop  v. 
Hoare,  3  Atk.  44  ;  Newcomb-Buchanan  Co.  v.  Baskett,  11  Bush,  653. 

8  Covill  v.  Hill,  4  Denio,  323 ;  Hyde  v.  Noble,  13  N.  H.  494  ;  38  Am. 
Doc.  503  5  Linnen  v.  Crugger,  40  Barb.  633 ;  Sultus  v.  Everett,  20  Wend. 
267  ;  32  Am.  Dec.  541. 

9  Wooster  v.  Sherwood,  25  N.  Y.  278  ;  Buckmaster  r.  Mower,  21 
Vt.  204.    HVe  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  36;',  371, 
giving  these  illustrations. 

10  See  Carter  v.  Wallace,  35  Hun,  189.    Lease  with  title  reserved: 
Pu.fer  v.  Reeve,  35  Hun,  480 ;  15  Abb.  N.  C.  388. 

11  See  citations  in  succeeding  notes. 

12  Burroughs  v.  Bayne,  5  Hurl.  <fe  N.  296.    Compare   Sargent  v. 
Gilo,  y  N.  H.  3J5. 

13  Chamberlain  v.  Smith,  44  Pa.  St.  431;  "Conversion  by  Pur- 
chase," 15  Am.  Law  Rev.  363,  371 ;  referring,  also,  to  Grant  v.  King,  14 
Vt.  367;  Hart  v.  Carpenter,  24  Conn.  427. 

g  185,  Transfers  of  unforfeited  pledges.  —  Sale  without 
restriction.  In  the  case  of  a  pledge,  the  holder  thereof 
is  considered  to  have  an  assignable  interest ; 1  but  a  sale 
by  the  pledgee  without  restriction,  before  maturity  of 
the  debt,  is  generally  regarded  as  a  conversion,  and  as 
conveying  no  title  to  any  purchaser.2 

Repledge  for  greater  amount.  It  has,  however,  re- 
cently been  decided  in  England,3  and  sustained  by  the 
Supreme  Court  of  the  United  States,4  that  a  repledge 
for  a  greater  amount  than  the  original  debt,  before 
maturity,  would  not  justify  a  recovery  in  conversion 
against  the  repledgee,  without  a  previous  tender  of  the 
original  debt,5  and  an  outright  purchaser  would  pre- 
sumably stand  011  even  a  better  footing  than  the  re- 
pledgee.6  The  ground  of  this  view  seems  to  be  found 
in  the  statement  that  although  the  pledgee  cannot  con- 
fer upon  a  third  person  a  better  title  or  greater  interest 
than  he  possesses,  yet  if,  nevertheless,  he  does  pledge 
the  goods  to  a  third  person  for  a  greater  interest  than. 


$   186  BONA  FIDE   PURCHASERS.  268 

he  possesses,  such  an  act  does  not  annihilate  the  con- 
tract of  pledge  between  himself  and  thepawnor;7  but 
the  transfer  is  simply  inoperative  as  against  the  original 
pavvnor,  who  upon  tender  of  the  sum  secured  immedi- 
ately becomes  entitled  to  the  possession  of  the  goods, 
and  can  recover  in  an  action  for  any  special  damage  ho 
may  have  sustained  by  reason  of  the  act  of  the  pawnee 
in  repledging  the  goods.8 

1  Bailey  r.  Colby,  34  N.  H.  2\    See  1  Schouler  on  Personal  Prop- 
erty, \  403  ;  citing,  Story  on  Bailments,  \\  322,  324 ;  2  Kent  Cora.  f>7t) ; 
Schouler  on  Bailments,  201  ;    Whitaker   v.  Sumner,  20    Pick.  3J9  ; 
Moses  v.  Conhuin,  Owen,  123  ;  Shelton  v.  French,  33  Conn.  489. 

2  Bailey  r.  Colby,  34  N.  II.  29.    And  see  McNeil  v.  Tenth  Xat. 
Bank,  55  Barb.  5J  ;  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  :.(>>, 
37J ;   1  Schouler  on  Personal  Property,  §403 ;  citing  cases  given  in 
last  note,  and  referring,  also,  to  Belclen  v.  Perkins,  7*  111.449;  Ashtoirs 
Appeal,  73  Pa.  St.  153.    Consult,  also,  note  to  Williams  v.  Merle,  25 
Am.  Dec.  615. 

3  Donald  v.  Suckling,  Law  R.  1  Q.  B.  5S5  ;  Bigelow's  Leading  Cases 
on  Torts,  394  ;  Halliday  v.  Holgute,  Law  R.  3  Ex.  2U9. 

4  Talty  ?•.  Freedman's  Sav.  Bank,  93  17.  S.  321. 

5  See  statements  of  cases  just  cited  in  article  on  "  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,  C72. 

6  See  query  in  Tally  r.  Freedman's  Bank,  93  U.  S.  321. 

7  Donald  r.  Suckling,  Law  R.  1  Q.  B.  585 ;  Bigelow's  Leading  Cases 
on  Torts,  3J4. 

8  Donald  v.  Suckling,  Law  R.  1  Q.  B.  585  ;  Bigelow's  Leading  Cases 
on  Torts,  35)4;  quoted  in  article  on  "Conversion  by  Purchase,"  15 
Am.  Law  Rev.  363,  372,  373.    The  doctrine  stated  is  said  to  be  the 
declared  American  rule  in  various  instances :   1  Schouler  on  Personal 
Property,  jf  404  ;  citing,  Lewis  v.  Mott,  £6  Jf .  Y.  3;>5  ;  Belden  r.  Perkins, 
78  ill.  44J  ;  Schouler  on  Bailments,  202  ;  First  JSut.  Bank  r.  Boyce,  78 
Ky.  42. 

I  183.  Sales  of  forfeited  pledges.  —  Mode  of  making.  If 
the  pledger  fails  to  make  payment  at  the  time  agreed 
therefor,  the  pledgee  may,  aside  from  his  personal 
remedy  upon  the  debt,  legally  sell  the  goods  pledged  to 
him,  and  convey  a  valid  title  thereto,1  either  at  a  judicial 
sale  upon  foreclosure  of  the  pledge,2  or  by  a  sale  with- 
out the  supervision  of  the  courts,3  in  a  public  manner, 
after  notice,4  in  the  mode  prescribed  by  the  general  la\v,3 
or  by  local  statute,6  or  by  the  special  agreement  of  the 
parties.7 


269  BONA  FIDE   PURCHASERS.  §   187 

Irregularity  in.  But  it  is  the  latest  American  doctrine 
that  the  pledgee  cannot  treat  a  sale  which  is  made  with- 
out any  or  sufficient  notice,  or  is  otherwise  irregular  or 
informal,  as  in  itself  a  conversion  of  the  pledged  prop- 
erty;8 but  that  as  a  prerequisite  to  suing  either  the 
pledgee  or  a  third  person  to  whom  the  pledgee  may 
have  transferred  the  property,9  he  must  tender  the 
amount  that  he  owes,10  or  at  any  rate,  that  whatever  the 
ground  of  illegality,  the  pledger  can  only  recover  dam- 
ages over  and  above  the  amount  of  indebtedness  on  his 
part.11 

1  See  Martin  v.  Rei  1, 11  Com.  B.  N.  S.  7CO ;  Johnson  v.  Stear,  15 
Com.  B.  N.  S.  3;,0 ;  Pigott  v.  Cubley,  in  Com.  B.  N.  S.  701. 

2  See  citations  in  succeeding  notes. 

3  Soo  2  Bouvlcr  Law  Diet.  (14th  ed.)  341. 

4  See  2  Kent  Com.  582  ;  Story  on  Bailments,  ?  310  ;  1  Schouler  on 
Personal  Property,  \  407  ;  referring,  also,  to  Kemp  ?•.  Westbrook,  1 
Ves.  278  ;  Tinker  v.  Wilson,  1  P.   Wms.  261 :  Wflshburn  r.  Pond,  2 
Allen,  474  ;  Elder  v.  Rouse,  15  Wend.  218  ;  Davis  v.  Funk,  C3  Pa.  St.  243. 

5  See  2  Bouvicr  Law  Diet.  (14th  ed.)  341. 

6  See  Mass.  Pub.  Stats,  ch.  192,  \\  10, 12  ;  Schouler  on  Bailments, 
222 ;  Cal.  Civ.  Code,  \\  300o,  3011. 

7  1  Schouler  on   Personal    Property,  ?  408 ;   citing,  Robinson  v. 
Hurley,  11  Iowa,  410;  Mowry  r.  Wood,  12  Wis.  413  ;  Stevens  v.  Bell,  6 
Mass.  339  ;  Rolirle  v.  Stidger,  50  Cal.  207. 

8  See  citations  in  succeeding  notes. 

9  See  preceding  section  of  book. 

10  Tender  in  general :  2  Bouvier  Law  Diet.  (14th  ed.)  581. 

11  1  Schouler  on  Personal  Property,  ?  407,  p.  484,  n.  3 ;  referring  to 
Hallilay  r.  Holgute,  Law  R.  3  Ex.  2!)') ;  Baltimore  Mar.  Ins.  Co.  v. 
Dalrymple,  2f>  Mel.   14'2  ;  Lewis  r.   Mott,  36   N.   Y.   3<)f> ;  Bulkeley  r. 
Welch,  31  Conn:  339;  Kidney?-.  Persons,  41  Vt.  380  ;  Schoul^ron  Bail- 
ments, 20!),  210,  and  cases  cited  ;  Talty  v.  Freedman's  Savings  Co.  93 
U.  8.  321. 

$  187,  Delivery  of  goods  for  sale,  —  Disposal  by  bailee 
or  agent.  Where  goods  are  intrusted  for  sale  to  a  bailee 
or  agent,1  his  disposal  of  them  for  his  own  use  instead 
of  that  of  the  party  who  delivered  them  to  him,  is  a 
conversion  which  invalidates  the  title  of  the  purchaser  • 2 
as  where  an  article  of  personal  property  is  delivered  to 
another  to  sell  for  the  owner,  and  the  bailee  turns  it 


§   188  BOXA   FIDE   PURCHASERS.  270 

over  to  his  creditor  in  payment  of  his  own  pre-existing 
debt.3 

Departure  from  orders.  And  the  general  rule  that  a 
material  surpassing  of  authority  is  a  conversion,  applies 
where  there  is  a  substantial  departure  from  orders,  as 
where  an  exchange  of  the  goods  is  made  instead  of  a 
sale;4  but  not  where  there  is  merely  a  sale  at  prices 
below  those  authorized.5 

1  Goods  in  possession  of  agent  or  bailee:  Glass  t\  Gelvin,  80  Mo. 
297. 

2  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  "63, 
373. 

3  Parsons  v.  Webb,  8  Greenl.  38  ;  Roclick  r.  Coburn,  6S  Me.  170. 

4  Haas  i\  Damon,  9  Iowa,  5S9.    Exchange  by  agent  authorized  to 
sell :  Trudo  v.  Anderson,  10  Mich.  357 ;  81  Am.  Dec.  795. 

5  Sargent  ?-.  Blunt,  16  Johns.  74.    See  "Conversion  by  Purchase,'* 
15  Am.  Law  Rev.  363,  373.    Sale  in  excess  of  instructions  us  giving 
good  title  to  bona  fde  purchaser :  Arnold  ?\  Halenbake,  5  Wend.  34  ; 
as  cited  in  note  to  Williams  v.  Merle,  25  Am.  Dec.  615. 

§  188.  Transfer  by  factor.  —  Pledge.  A  factor  or  com- 
mission merchant  has  an  assignable  lien  ]  on  his  prin- 
cipal's goods  for  advances  made;2  but  if  he  pledge 
them3  be3rond  this  for  his  own  use,*  ho  has  generally 
been  deemed  guilty  of  a  conversion.5  And  the  pledgee 
has  been  held  to  acquire  no  title  to  the  goods  in  such  a 
case,  even  against  a  subsequent  bona  fide  purchaser 
from  the  factor.6 

Exchange,  So  a  factor  having  a  general  authority  to 
sell  his  principal's  goods,  has  no  authority  to  exchange 
them  for  others,  and  if  he  does  so,  his  authority  as 
factor  ceases,  and  he  becomes  liable  to  account  for  their 
value  to  his  principal.7 

Factors?  acts,  etc.  But  the  rigor  of  the  rule  adverse 
to  effectual  pledges  by  factors  has  been  modified  both 
in  England  and  in  many  parts  of  America  by  the  pass- 
age of  factors'  acts,8  which  usually  provide  for  the  pro- 
tection of  bona  fide  transferees,  especially  where  they 
are  intrusted  with  such  documents  of  title,9  or  control, 


271  BONA  FIDE   PURCHASERS.  \   189 

as  bills  of  lading,  warehouse  receipts,  etc.10  And  inde- 
pendently of  statute,  the  rule  lias  been  questioned  and 
qualified,11  and  the  doctrine  of  estoppel  has  been  in- 
voked against  the  owner  of  goods  who  confers  apparent 
ownership  or  authority  to  sell  upon  a  factor  or  other 
person.12 

1  See  Donald  v.  Suckling,  Law  R.  1  Q.  B.  585;  Bigelow's  Leading 
Cases  on  Torts,  394. 

2  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
373. 

3  Pledge  by  factor  of  notes  and  goods  as  collateral :  St.  Louis 
Bank  v.  Ross,  a  Mo.  App.  399. 

4  Power  of  sale  by  agent  or  factor  gives  no  right  to  pledge  under 
English  or  Canadian  law  :  City  Bunk  v.  Barrows,  Law  R.  5  App.  C. 
664  ;  34  Eng.  Rep.  41. 

5  Story  on  Agency,  §  113  ;  Wright  v.  Solomon,  19  Cal.  64  ;  73  Am. 
Dec.  1;>6  ;  overruling  decisions  thut  doctrine  confined  to  technical 
factor,  in  Hutchinson  v.  Bows,  6  Cal.  385 ;  Glidden  v.  Lucas,  7  Cal.  16  ; 
and  Horr  v.  Barker,  11  Cal.  393  ;  70  Am.  Dec.  791.    Agent  to  sell  can- 
not pledge :  McCreary  v.  Gains,  55  Tex.  485 ;  26  Alb.  L.  J.  57. 

6  Nowell  v.  Pratt,  5  Gush.  111.    Sale  by  factor  as  distinguished 
from  mere  broker:  Batmen  nan  v.  Quackenbush,  11  Daly,  52',).    Pur- 
chase from  factor  ;  notice  of  facts  to  put  on  inquiry  :  McLachlin  v. 
Brett,  34  Hun,  478. 

7  Wing  v.  Neal,  2  Atl.  Rep.  (Me.)  881. 

8  See  2  Kent  Com.  628,  n.  I ;  Smith's  Mercantile  Law  (Am.  ed.), 
126,  n. ;  2  Schooler  on  Personal  Property,  g  550,  noto  on  p.  508  ;  note  to 
Williams  ?'.  Merle,  25  Am.  Dec.  616.    And  consult  subsequent  chapter 
on  that  subject. 

9  See  subsequent  chapter  on  that  subject. 

10  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev  363, 
373,  374;  section  on  FACTORS'  ACTS  ix  GENERAL  in  next  chapter. 

11  See  Higgons  v.  Burton,  23  Law  J.  Ex.  32 ;  Story  on  Agency,  \  113. 

12  See  section  on  APPARENT   OWNERSHIP  OR  AUTHORITY,  in 
chapter  on  FACTORS'  ACTS. 

§  189,  Purchase  generally  from  one  lacking  title.  —  As 
constituting  conversion.  A  thief,  a  trespasser,  and  a 
converter,  all  act,  not  merely  without  the  owner's  con- 
sent,  but  in  hostility  to  his  authority;1  hence,  these 
tort-feasors  can  acquire  none  of  the  owner's  rights,2 
and  can  transmit  no  title  to  the  innocent  purchaser, 
who  is  liable  for  conversion  because  "  the  very  act 
of  taking  goods  from  one  who  had  no  right  to  dispose 
of  them  is  a  conversion."3  For  the  unauthorized 


§   189  BOX  A  FIDE   PURCHASERS.  272 

appropriation  of  another's  property  is,  as  a  rule,  suffi- 
cient to  enable  the  owner  to  maintain  an  action  for  its 
conversion.4  And  it  is  declared  that  "certainly  a  man 
is  guilty  of  a  conversion  who  takes  my  property  by 
assignment  from  another  who  has  no  authority  to 
dispose  of  it."5  So  it  has  been  held  that  one  who 
claimed  a  right  to  property  under  a  parchase  from  a 
person  who  had  no  title  or  power  to  sell,  was  liable  for 
a  conversion.6  In  this  class  of  cases  no  regard  is  had  to 
the  vendee's  ignorance  of  the  vendor's  want  of  title,  or 
to  the  vendee's  coming  rightfully  to  the  goods  as  a 
purchaser  without  notice,  or  to  the  vendor's  having  the 
lawful  possession  of  the  goods.7 

Liability  of  auctioneer,  etc.  Even  an  auctioneer  or 
broker,  who  sells  property  for  one  who  has  no  title, 
and  passes  over  the  proceeds  to  his  principal,  with  no 
knowledge  of  the  defect  of  title  or  want  of  authority,8 
is  held  liable  for  its  conversion  to  the  real  owner.9 
And  where  a  sale  of  personal  property  is  made  by  an 
auctioneer  without  disclosing  the  name  of  the  owner, 
and  the  property  is  afterwards  claimed  by  a  superior 
title,  it  has  been  held,  though  not  without  dissent, 
that  the  purchaser  may,  in  an  action  for  money  had 
and  received,  recover  the  purchase  money  of  the 
auctioneer.10 

1  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
374.    And  consult  Russell  r.  Oppenheimer,  1  Tex.  App.  (Civ.  Cas.) 
§2  269-272. 

2  See  Galvin  v.  Bacon,  11  Me.  (2  Fairf.)  23 ;  25  Am.  Dec.  258. 

3  Hurst  ?-.  Gwennap.  2  Stark.  "06 ;  McCombie  r  Davis,  fi  East,  540. 
And  seo  Baldwin  r.  Cole,  6  Mod.  212  ;  Alexander  v.  Swackhamer,  105 
Ind.  81 ;  55  Am.  Rep.  ISO. 

4  Alexander  r.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  ISO. 

5  McCombie  ?-.  Davis,  6  East,  540.    See  Alexander  r.  Swackhamer, 
105  Ind.  81 ;  55  Am.  Rep.  IrfO. 

6  Hyde  v.  Noble,  13  N.  H.  494 ;  38  Am.  Dec.  SOS.    And  a  purchase 
without  notice  from  one  who  has  no  title,  and  no  right  or  apparent 
authority  to  transfer  the  property,  will  not  be  a  defense  :  Alexander 
v.  Swackhamer,  105  Ind.  SI ;  55  Am.  Rep.  180. 


273  BONA   FIDE   PURCHASERS.  §    193 

7  ITartop  v.  Hoare,  3  Atk.  49.    As  quoted,  Roberts  v.  Dillon,  3 
Daly,  50. 

8  Hills  v.  Snell,  104  Mass.  173  ;  G  Am.  Rep.  216. 

9  Hills  v.  Snell,  104  Mass.  173 ;  6  Am.  Rep.  216.    As  quoted,  Alex- 
ander v.  Swackuamer.105  Ind.  81  ;  £3  Am.  Rep.  180  ;  citing,  Shearer 
v.  Evans,  8:>  Ind.  400  ;  Breckenrid^o  v.  McAfee,  54  Ind.  401 ;  Curme  v. 
Rauh,  100  Ind.  2^7  ;  Gilmore  ?>.  Newton,  9  Allen,  171 ;  Grunson  v. 
State,  89  Ind.  533 ;  46  Am.  Rep.  178. 

10  Seemuller  v.  Fuchs,  64  Md.  217  ;  citing,  Hanson  v.  Roberdeau, 
Peake,  163;  Jones  v.  Littledale,  6  Ad.  &  E.  486 ;  Mills  v.  Hunt,  20 
Wend.  431 ;  Franklyn  v.  Lamond,  4  Com.  B.  637 ;  Story  on  Agency, 
£207;  Addison  on  Contracts,  642;  Babington  on  Auctions,  9  Law 
Lib.  §  185. 

§  190.  Stato  of  title  governs.  —  Purchase  from  bank- 
rupt, etc.  The  entire  controversy  in  doubtful  cases  re- 
volves about  the  title  ; l  and  whoever  takes  the  property 
of  another  without  his  assent,  express  or  implied,  or 
without  the  assent  of  some  one  authorized  to  act  in  his 
behalf,  takes  it  in  the  eye  of  the  law,  tortiously,  so  that 
his  possession  is  not  lawful  against  the  true  owner  2 
Hence,  where  goods  are  bought  of  a  bankrupt,  it  would 
seem  that  the  purchaser  is  guilty  of  a  conversion,  aa 
well  as  the  seller;3  for  the  title  vests  in  the  assignee 
from  the  moment  of  bankruptcy,  and  therefore  the 
vendor  has  no  title  to  convey.4  So  where  plate  has 
been  pawned  by  a  widow,  who  had  only  a  life  interest 
in  it,  the  pawnee  was  held  liable  in  conversion,  although 
he  had  no  notice  of  the  fact.5 

Artisan's  reservation  of  title.  Even  wheels  and  axles 
have  been  recovered  in  trover  from  a  bona  fide  pur- 
chaser of  the  wagon,  though  he  bought  from  the  owner 
of  the  wagon  himself,  where  the  latter  had  previously 
delivered  the  wagon  to  a  bailee,  who  had  it  repaired, 
but  exacted  that  he  should  retain  the  wheels  and  axles 
furnished,  as  security  for  the  payment  of  a  note  given 
for  the  repairs.6 

Objects  affixed  to  land.  And  where  the  tenant  of  one 
person  borrowed  some  rails  from  another,  and  built 
them  into  a  fence  and  corn-bin  on  the  land  occupied 


\   190  BONA  FIDE   PURCHASERS.  274 

by  the  borrower,  a  third  person,  who  bought  this  land 
of  the  owner  without  notice  of  these  facts,  was  held 
liable  in  trover  to  the  owner  of  the  rails.7 

Animal  coming  into  stranger's  possession.  Nor  has 
any  escape  from  such  liability  been  allowed  in  the  case 
of  a  bona  fide  purchaser  of  a  horse  which  had  been 
stolen  from  the  owner,  and  came  into  the  possession  of 
an  officer  of  the  United  States  army,  who  did  not 
clearly  establish  the  paramount  title  of  the  government 
by  capture  or  confiscation.8  Similarly  it  has  been  held 
that  the  possession  and  use  of  a  horse  which  disap- 
peared from  the  plaintiff,  though  honestly  purchased 
by  the  defendants  and  their  vendors,  is  a  violation  of 
the  rights  of  the  plaintiff,  for  which  an  action  of  con- 
version will  lie.9 

Chronometer  not  returned  by  hirer.  And  conversely 
where  the  plaintiff,  a  master  of  a  ship,  sent  his  chro- 
nometer to  the  defendants  to  have  it  repaired,  and  the 
latter  recognized  it  as  one  which  had  been  hired  by 
them  to  another  master,  to  be  returned  at  the  end  of 
the  voyage,  or  within  twelve  months,  but  which  had 
never  been  returned,  it  was  held  that  though  the  plaint- 
iff had  purchased  the  chronometer  in  good  faith  of  a 
watchmaker  more  than  two  years  previously,  for  a  fair 
price,  he  could  not  recover  it  of  the  defendants.10 

1  See  Cundy  v.  Lindsay,  Law  B.  3  A  pp.  C.  463  ;  24  Ens:.  Rep.  345  ; 
article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Jlev.  863,  375. 

2  Galvin  v  Bacon,  11  Me.  (2  Fairf.)  23  ;  25  Am.  Pec.  258. 

3  See  Stephens  v.  Elvvall,  4  JMaule  <fe  S.  259. 

4  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
375,  giving  nearly  all  succeeding  illustrations, 

5  Hoare  v.  Parker,  2  Term  Bep,  578, 

6  Clark  r.  Wells,  45  Vt.  4. 

7  Ogdcn  v.  Lucas,  48  111.  492. 

8  Wilson  v.  Crockett,  43  3Io.  216. 

9  Dee  v.  Hyland,  3  Utah,  SOS,  314;  3  Pacif.  Rep.  33?;  citing,  Gil- 
more  r.  Newton,  9  Allen,  171 ;  Trudo  v.  Anderson,  10  Mich.  857;  81 
Am.  Dec.  795. 

10  -Boberts  v.  Dillon,  3  Daly,  50 ;  quoting,  Hartop  v.  Hoare,  3  Atk.  49 


275  BONA  FIDE   PURCHASERS.  \  191 

\  101.  Demand.  —  Opposing  views  of  necessity  of. 
Under  the  strict  view  of  the  rule  governing  trans- 
mission of  title  to  personal  property,  adopted  in  many 
of  the  States,1  it  is  the  accepted  doctrine  that  where 
possession  is  taken  under  a  purchase  from  one  lacking 
title,  an  action  for  conversion  is  maintainable  without 
previous  demand,2  upon  the  ground  that  where  the 
taking  istortious  the  buyer's  possession  is  unauthorized 
from  the  beginning,3  and  no  further  evidence  of  the 
conversion  is  necessary.4  This  position  raises  the  ques- 
tion why  the  right  of  the  plaintiff  to  recover  his  prop- 
erty should  be  made  to  depend  upon  the  good  faith  of 
the  defendant,  when  that  good  faith  is  no  defense  against 
the  plaintiff's  right  of  property  or  possession  when  a 
previous  demand  has  to  be  made.5  But  in  the  view 
taken  by  some  of  the  cases,6  the  bona  fides  of  the  pur- 
chase makes  a  difference,7  and  it  is  urged  that  as  the 
buyer  acts  in  good  faith,  his  possession  at  least  is  law- 
ful, particularly  where  he  takes  from  a  bailee  who  has 
the  lawful  possession.8  Hence,  it  is  argued  that  only 
subsequent  acts  of  the  purchaser  can  make  him  guilty 
of  a  conversion,  and  where  there  is  no  such  decided 
dealing  with  the  goods  as  a  sale  would  effect,  it  is  asked 
how  else  the  design  to  convert  can  be  manifested,  except 
by  detention  after  demand,  or  how  it  can  be  otherwise 
shown  that  the  innocent  and  lawful  possessor  has  had 
an  opportunity  to  restore  the  goods.9 

Where  demand  deemed  unnecessary.  Following  the 
asserted  weight  of  English  authority,  however,  a  de- 
mand appears  to  be  deemed  unnecessary  in  such  cases 
in  Massachusetts,10  Maine,11  New  Hampshire,12  Ver- 
mont,13 Pennsylvania,14  Maryland,15  Georgia,16  Missis- 
sippi,17 Arkansas,18  Illinois,19  Michigan,20  Wisconsin,21 
California,92  Nevada,23  and  Oregon."4 

Where  demand  deemed  essential.    The  opposite  view, 


§   191  BONA   FIDE   PURCHASERS.  276 

holding  that  a  demand  is  essential  in  such  cases,  is 
maintained  in  New  York,25  Connecticut,26  Indiana,27 
Tennessee,28  and  possibly  other  States.29 

1  See  subsequent  portion  of  section. 

2  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363. 
378,  377. 

3  See  Galvin  v.  Bacon,  11  Me.  (1  Fairf.)  28 ;  25  Am.  Dec.  258. 

4  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 377. 
"That  is  unlawful  which  is  not  justified  or  warranted  by  law,  and  of 
this  character  may  be  some  acts  which  are  not  attended  with  any 
moral  turpitude  :  "  Galvin  v.  Bacon,  11  Me.  (1  Fairf.)  28  ;  25  Am.  Dec. 
258  ;  quoted,  Surles  v.  Sweeney,  11  Or.  21. 

5  Trudo  ?».  Anderson,  10  Mich.  363 :  81  Am.  Dec.  705.    As  quoted, 
Surles  r.  Sweeney,  11  Or.  21  ;  citing,  Shoemaker  r.  Simpson,  16  Kan. 
52  ;  liallou  ?'.  O'Brien,  HO  Mich.  34  ;  Prime  v.  Cobb,  63  Me.  202  ;  McNeil 
v.  Arnold,  17  Ark.  155  ;  Smith  r.  McLean,  24  Iowa,  322  ;  Newell  v. 
Newell,  34  Miss.  386 ;  Clark  v.  Lewis,  35  111.  423. 

6  See  subsequent  portion  of  section. 

7  See  Surles  i\  Sweeney,  11  Or.  21. 

8  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  377. 

9  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  377. 
See  Surles  v.  Sweeney,  11  Or.  21 ;  citing,  Barrett  r.  Warren,  3  Hill, 
348  ;  Tallman  v.  Turck,  26  Barb.  167,  and  referring,  also,  to  Wood  v. 
Cohen,  6  Ind.  454. 

10  See  Stanley  v.  Gaylord,  1  Cush.  536  ;  48  Am.  Dec.  643  ;  Riley  v. 
Boston  Water  Power  Co.  11  Cush.  11 ;  Chapman  v.  Colo,  12  Gray,  141  ; 
71  Am.  Dec.  7^0  ;  Gilmore  r.  Newton,  9  Allen,  171  ;  Heckle  v.  Lervey, 
101  Mass.  344  ;  Carter  v.  Kingman,  103  Mass.  517. 

11  See  Parsons  ?j.  Webb,  8  Greenl.  38  ;  Galvin  v.  Bacon,  11  Me.  28  ; 
25  Am.  Dec.  417',    Whipple  »».  Gilpatrick,  10  Me.  427;    Freeman  v. 
Underwood,  66  Me.  223  ;  Rodick  v.  Coburn,  68  Me.  170. 

12  See  Hyde  v.  Noble,  13  N.  H.  494  ;  38  Am.  Dec.  508  ;  Lovejoy  v. 
Jones,  30  N.  H.  164. 

13  See  Riford  v.  Montgomery,  7  Vt.  411  ;  Grant  v.  King,  14  Vt.  367  ; 
Courtis  v.  Cane,  76  Am.  Dec.  174  ;  Deering  v.  Austin,  34  Vt.  330  ;  Buck- 
1m  v.  Beal,  38  Vt.  653. 

14  See  Carey  v.  Bright,  58  Pa.  St.  70.    But  see  Talmadge  v.  Scudder, 
33  Pa.  St.  517. 

15  SeeHarkerv.  Dement,  9  Gill,  7. 

16  See  Robinson  v.  McDonald,  2  Ga.  116. 

17  See  Johnson  v.  White,  21  Miss.  4S4. 

18  See  McNeil  v.  Arnold,  17  Ark.  154. 

19  See  Gibbs  v.  Jones,  46  111.  319. 

20  See  Trudo  v.  Anderson,  10  Mich.  357 ;  81  Am.  Dec.  795. 

21  See  Oleson  v.  Merrill,  20  Wis.  487  ;  Eldred  v.  Oconto  Co.  33  WIs. 
133.    But  see  Dunham  r.  Converse,  28  Wis.  o06. 

22  See  Harpending  v.  Meyers,  55  Cal.  555. 

23  See  Whitman  Mining  Co.  v.  Tritle,  4  Nev.  494  ;  Ward  v.  Carson 
River  Wood  Co.  13  Nev.  44. 


277  BON  A   FIDE   PURCHASERS.  \  192 

24  Surles  v.  Sweeney,  11  Or  21. 

25  See  Storm  v.  Livingston,  6  Johns.  44  ;  Barrett  v.  Warren,  3  Hill, 
348  ;  Pierce  v.  Van  Dyke,  -  Hill,  613  ;  Millspaugh  v.  Mitchell,  8  Barb. 
333;  Tallmun  r.  Turck,  26  Barb.  167  ,  Twinani  ?;.  Swart,  4  Lans.  263; 
Rawley  v.  Brown.  18  Hun,  456.     Contra,  Bates  v.  Conkling,  10  Wend. 
38.).    In  some  of  the  New  York  cases,  subtle  distinctions  are  made  ns 
to  the  form  of  action,  and  especially  is  a  distinction  made  between  a 
delivery  to  the  purchaser  and  a  taking  of  the  property  out  of  the 
vendor's  possession  :  Marshall  ?'.  Davis,  1  Wend.  10.) ;  Nash  r.  Mnshcr, 
1»  Wend.  431 ;  Ely  v.  Ehle,  3  Comst.  506  ;  Fuller  v.  Lewis,  13  How.  Pr. 
219. 

26  See  Parker  v.  Middlebrook,  24  Conn.  207. 

27  See  Wood  v  Cohen,  6  Ind.  455  ;  Sherry  v.  Picken,  10  Ind.  375. 

28  See  Houston  v.  Dyche,  Meigs,  76.    But  see  Wells  v.  Raglan,  1 
Swan,  501. 

29  Article  on  "  Conversion  by  Purchase."  15  Am.  Law  Rev.  363, 
377,  378. 

§  192.  Purchase  from  one  having  a  voidable  or  defeasible 
title.  —  In  general.  While  the  good  or  bad  faith  of  the 
buyer  is  immaterial  in  the  case  of  a  purchase  from  one 
utterly  lacking  title,1  yet  there  is  a  large  group  of 
cases  embracing  instances  of  purchase  from  one  who 
has  a  voidable  or  defeasible  title,2  where  a  purchaser 
in  good  faith  and  without  notice  acquires  a  good  title, 
and  is  free  from  liability  for  conversion,  despite  the  de- 
fective character  of  his  vendor's  title.3  A  contract  of 
this  character  has  been  spoken  of  as  a  de  facto  contract, 
which  the  original  owner  could  reduce  and  set  aside, 
though  he  will  not  be  allowed  to  interfere  with  a  title 
for  valuable  consideration  obtained  by  some  third 
person  while  the  contract  remained  unreduced.4 

Impeachment  for  fraud.  The  typical  illustration  of 
such  an  impeachable  or  revocable  title  is  afforded  by 
the  case  of  a  fraudulent  vendee;5  but  an  example 
thereof  is  also  furnished  by  a  purchase  from  a  fraudu- 
lent vendor,  as  from  a  trader  who  sells  in  contempla- 
tion of  bankruptcy  or  insolvency,6  in  which  case  the 
transaction  is  liable  to  be  impeached  by  the  assignees, 
who  if  they  wish  to  disaffirm  the  contract,  must  de- 
mand the  goods  from  the  purchaser.7 
NKWMAKK  SALES.  — 24. 


\  193  BONA  FIDE   PURCHASERS.  278 

Infant's  voidable  contract.  By  analogy  it  would  seem 
that  the  same  principle  would  apply  to  the  case  of  a 
bonafide  purchaser  from  an  infant,  whose  sale  is  merely 
voidable  at  his  instance.8 

1  See  Cundy  v.  Lindsay,  Law  R.  3  App.  C.  463 ;  24  Eng.  Rep.  345; 
Alexander  v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  180.    See  section 
on  PURCHASE  GENERALLY  FROM  ONE  LACKING  TITLE. 

2  See  Stevens  v.  Hyde,  32  Barb.  180  ;  Rowley  v.  Bigelow,  12  Pick. 
307  ;  23  Am.  Dec.  607. 

3  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  378. 

4  Cundy  v.  Lindsay,  Law  R.  3  App.  C.  464  ;  24  Eng.  Rep.  345. 
Compare  Hallins  v.  Fowles,  Law  R.  7  Eng.  <fe  Ir.  App.  770. 

5  See  subsequent  section  of  chapter. 

6  Nixon  v.  Jenkins,  2  Black.  H.  135  ;  Jones  v  Fort,  9  Barn.  &  C. 
764. 

7  Jones  v.  Fort,  9  Barn.  &  C.  764.    For  when  the  purchase  was 
made  the  parties  were  competent  to  contract,  so  that  the  purchaser's 
possession  was  lawful,  and  only  upon  a  failure  to  deliver  could  he  be 
made  liable  for  conversion  :  Jones  v.  Fort,  9  Barn,  cfe  C.  764  ;  article 
on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  378. 

8  See  Carr  v.  Clough,  26  N.  H.  280  ;  59  Am.  Dec.  345  ;  article  on 
"  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  379. 

\  193,  Sale  with  condition  subsequent,  —  Title  of  inno- 
cent purchaser  from  vendee.  —  There  are  many  cases  of 
completed  sales  where  the  title  passes,  subject  to  defeat 
either  at  the  seller's  or  the  buyer's  option,  or  on  the 
failure  of  the  purchaser  to  make  payment  or  give  se- 
curity as  agreed.1  In  such  instances,  the  condition  sub- 
sequent2 does  not  affect  the  present  transfer  of  title,3 
and  hence  an  innocent  purchaser  from  the  vendee  ac- 
quires a  valid  title,  as  the  breach  of  the  condition  by  a 
sale  is  the  subject  of  other  remedies,  and  the  bona  fide 
purchaser  is  not  liable  for  conversion.4 

Eight  of  repurchase  ~by  original  seller.  Thus,  where 
there  is  a  sale  with  the  right  of  repurchase  reserved, 
the  title  passes  upon  the  condition  that  the  seller  may 
subsequently  regain  it  if  he  choose,  and  this  condition 
imposed  on  the  vendee  cannot  of  course  be  binding 
upon  a  further  bona  fide  purchaser,  who  takes  a  perfect 
title,  which  no  action  of  conversion  can  shake.5  It  is 


279  BONA  FIDE  PURCHASERS.  §   193 

sometimes  said  that  such  a  purchaser  takes  a  better 
title  than  his  vendor  had,  because  he  "  cuts  off  the  right 
of  repurchase"  ;6  but  it  is  probably  more  accurate  to 
say  that  such  reserved  right  has  disappeared,  because 
extracted  from  the  title  by  operation  of  law.7 

Revesting  of  title  on  default  in  payment,  etc.  Again, 
the  sale  may  be  complete  and  the  title  may  pass,  but  by 
express  stipulation  or  implication  from  circumstances, 
it  may  be  provided  that  the  title  shall  revest  in  the 
vendor  if  payment  is  not  made,  or  other  act  done,  as 
agreed.8  And  here  also  the  conclusion  would  appear 
to  be  justified  that  the  condition  subsequent,  securing 
the  reverting  of  the  title  in  certain  contingencies,  can- 
iiot  affect  the  title  of  the  innocent  purchaser.9 

Option  to  return  goods,  etc.  The  same  veiw  of  the 
nature  of  the  stipulation  attached  to  the  contract  would 
seem  to  govern  where  the  sale  is  consummated,  but  the 
buyer  has  the  option  to  return  the  goods  within  a  given 
time,10  or  even  where  he  has  the  alternative,11  to  pay  or 
return. u  In  these  cases  the  vendee's  privilege  to  have 
the  consideration  refunded  or  the  liability  canceled, 
whether  it  i;s  to  be  exercised  at  his  will,  or  if  the  goods 
prove  unsatisfactory,  is  the  converse  of  the  right  of  re- 
purchase ;  but  it  is  equally  a  condition  subsequent,  and 
likewise  creates  a  defeasible  title  ; 13  for  the  price  is  paid 
in  advance,  and  the  property  passes  at  once,  subject  to 
the  right  to  rescind  and  return.14  Hence  the  validity 
of  the  bonafide  purchaser's  title,  and  the  impregnability 
of  his  position.15 

1    See  illustrations  given  later  in  section. 


2  Conditions  subsequent  in  gener.il :  See  1  Bouvier's  Law  ~Di?t, 
tit.  Condition  (14th  e;l.),  31:5  ?  Winfleld's  Vv'ords  r.nd  Phras-  s,  i:» ;  quot- 
ing, Chapin  v.  School  District,  35  N.  H.  450  ;  N.  &  N.  W.  II.  II.  Co. 


.•  Jones,  2  Coll.  514  ;  Lu-llow  t>.  N.  Y.  &  II.  II.  II.  Co.  12  Barb.  442.    In 
Bales :  See  2  Schouler  on  Personal  Property,  §  300. 

3  Transfer  of  title  generally :  See  chapter  on  that  subject. 

4  Article  on  •  Conversion  by  Purchase,"  13  Am.  Law  Hev.  303,  379. 


§   194  BONA  FIDE   PURCHASERS.  280 

5  Hills  v..  Snell,  104  Mass.  173, 177  ;  6  Am.  Rep.  216. 

6  Bigelow  on  Torts,  192. 

7  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 380. 

8  Lewis  ?'.  Palmer,  Hill  &  D.  Supp.  68.    And  see  Southwick  v. 
Smith,  29  Me.  228  ;  Chamberlain  v.  Dickey,  31  Wis.  63. 

9  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 380. 

10  Moss  v.  Sweet,  16  Q.  B.  493  ;  20  Law  J.  Q.  B.  167  ;  Schlesinger  v. 
Stratton,  9R.  I.  578  ;  Ray  v.  Thompson,  12  Cush.  281 ;  59  Am.  Dec.  187  ; 
Hall  v.  JStna  Manuf  Co.  30  Iowa,  215. 

11  See  Hotchkiss  v.  Higgins,  52  Conn.  205  ;  52  Am.  Rep.  582;  discuss- 
ing cases  on  sale  or  return. 

12  Buswell  v.  Bicknell,  17  Me.  344;   ?5  Am.  Dec.  262;  Perkins  v. 
Douglas,  20  Me.  317 ;  Jameson  v.  Gregory,  4  Met.  (Ivy.)  363;  Martin  r. 
Adams,  104  Mass.  262;  McKinnee  v.  Bradlee   117  Mass.  821.    But  it 
would  be  otherwise  where  the  title  is  retained  by  special  agreement : 
Crocker  v.  Gullifer,  44  Me.  401 ;  63  Am.  Dec.  US  ;  Porter  v.  Pettengill, 
11  N.  H.  299.    Bargains  of  "  sale  or  return  "  :  2  S^houler  on  Personal 
Property,  \  312 ;  Hotchkiss  v.  Biggins,  52  Conn.  205  ;  52  Am.  Rep.  582. 

13  Compare  §  192,  on  PURCHASE  FROM  ONE  HAVIXQ  A  VOIDABLE 
OR  DEFEASIBLE  TITLE. 

14  See  Hunt  v.  Wyman,  100  Mass.  198. 

15  Article  on  '*  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  380. 

\  194.  Sale  with  condition  precedent.  —  Nature  of  trans- 
action. As  distinguished  from  the  class  of  cases  where 
the  title  passes  subject  to  subsequent  defeat  from  breach 
of  condition,1  the  terms  of  sale  may  provide  that  the 
title  shall  remain  in  the  vendor  until  the  performance 
of  some  condition,  as  payment,  security,  and  the  like.2 
A  common  illustration  is  the  case  of  instalment  sales,3 
where  the  bill  of  sale  is  not  to  be  given  until  the  final 
payment  is  made.* 

Position  of  bona  fide  purchasers.  In  such  instances 
there  is  a  condition  precedent  to  the  vesting  of  the  ti'Je 
in  the  vendee,5  and  his  sale  before  the  fulfilment  of 
this  condition  confers  no  rights  even  upon  an  innocent 
purchaser.8  As  the  law  upon  the  subject  of  such  a 
transaction  between  the  parties  has  been  recently  ex- 
pressed, where  a  sale  is  made  and  possession  delivered 
to  the  vendee  upon  the  express  condition  that  the  title 
to  the  thing  is  to  remain  in  the  vendor  until  the  pur- 
chase price  be  paid,  such  payment  is  strictly  a  con- 


281  BONA   FIDE   PURCHASERS.  $   194 

dition  precedent,7  and  until  performance  thereof,  the 
sale  is  incomplete,  and  the  right  of  property  is  not 
vested  in  the  vendee.8  But  in  regard  to  the  liabilities 
of  bona  fide  purchasers,  it  is  deemed  possible  that  the 
remedy  of  the  vendor,  who  confers  upon  another  an 
apparent  title  by  a  conditional  sale,  may  be  restricted 
to  the  right  to  recover  the  property;9  and  that  no  one 
can  be  held  responsible  in  tort  for  the  conversion  of  the 
property,  who  "  merely  exercises  such  dominion  over 
it  as  is  warranted  by  the  authority  thus  given." 10 

Difficulties  in  discrimination.  Jt  is  often  difficult  to 
distinguish  between  an  agreement  for  a  future  sale 
upon  the  performance  of  a  condition,  and  a  bailment 
with  the  privilege  of  purchasing.11  but  there  is  no 
difference  in  principle  as  to  the  lack  of  title  of  a  bona 
fide  purchaser.12  The  real  problem  in  the  domain  of 
sales,  however,  is  in  deciding  whether  there  is  a  sub- 
sisting condition  precedent,  or  whether  the  title  has 
absolutely  passed,  and  this  requires  the  determination 
of  a  question  of  fact,  governed  by  the  intention  of  the 
parties ; 13  but  it  is  not  easy  to  apply  such  a  criterion 
when  there  is  a  pronounced  conflict  between  the 
apparent  purport  of  an  express  agreement  and  the 
implications  arising  from  conduct.14 

1  See  preceding  section  of  book. 

2  See  succeeding  portions  of  section. 

3  Ketchum.  v.  Brennan,  53  Miss.  546. 

4  Sanders  v.  Keeber,  23  Ohio  St.  630  ;  Naglee  v.  Eddy,  53  Cal.  537. 
Title  does  not  pass  where  reserved  under  agreement,  till  bill  of  sale 
or  taking  possession  :    Wilcox  ?>.  Russell,  1-56  Mass.  211,  21(5;  citing, 
Chase  v.  Denny,  130  Mass.  560  ;  Moody  v.  Wright,  Li  Met.  17,  :>J. 

5  Condition  precedent  in  general :  1  Bouvier  Law  Diet.  tit.  Condi- 
tion (14th  ed.),  313;  Winiield's  Words  etc.;  citing,  Redman  v.  ^Etna 
Ins.  Co.  49  Wis.  438  ;  Moore  v.  Moore,  47  Barb.  2U2 ;  Selden  ?'.  Priagle, 
17  Barb.  466  ;  Ludlow  v.  N.  Y  <fe  II.  R.  R.  Co.  12  Barb.  442.    In  sales  :  2 
Schouler  on  Personal  Property,  §  285.     Sale  subject  to  approval : 
Ruhus  v.  Gates,  92  Ind.  6(5.     When  sale  presumed  unconditional  : 
Hunt  v.  Kellum,  59  Tex.  535,  537 

6  Hirschorn  v.  Canney,98Mass.  149  ;  Ballard  v.  Burgett,40  N.  V. 
314;  Langdell's  Cases  on  Sales,  730;  Hotchldss  r.  Hunt,  4.)  Mo.  213 ; 
Putnam  v.  Lamphier,  06  Cal.  151 ;  Couse  v.  Tregent,  11  Mich.  65 ; 


195  BONA  FIDE   PURCHASERS.  282 


e, 


Griffin  v.  Push,  44  Mo.  326  ;  Clark  n.  Wells,  45  Vt.  4  ;  Jennings  ?'.  Gag 
18  111.  (510;  56  Am.  Dec.  47(5;  Clayton  r.  Hester,  80  N.  c.  117.1.    Be 
art.i.'ie  on  <!  Convcrsifui  hy  Purchase,"  15  Ani.  Law  ll"v.  :;<;:!,  :?-U.    As- 
'-v:<'<-  of  insolvent  is  not  bona  flde  purchaser:    Lentz   v.  Flint,  53 
h.  444. 


7  Cobb  7'.  Tufts,  2  Tex.  App.  (Civ.  Cas.)  \  152.    See  under  chapter 
on  CONDITION  A  L,  SALKS. 

8  Cobb  v.  Tufts,  2  Tex.  App.  (Civ,  Cas.)  §  152  ;  citing,  Heath  v. 
Randall.  4  rush.  i..f>  ;  Co-i-cill  /•.  Hartford  etc.  B.  li.  Co.  a  Gray,  541; 
r.angdfll'8    rises  0:1   Sales,  7i:s;    HotchkiM   v.    Hunt,  4»   .Me.   21:5  ; 
Ballurd    v.  15u:--"tt,  40  N.   Y.  814  ;   Lang'lfll's  Cas-s  on   Sales,  T-0  ; 
r:trni"lc"  ?>    Catherwood,  36  Mo.  47'J  ;  Little  v.  Page,  44  Mo.  412; 
Itidgeway  v.  Kennedy,  52  Mo.  24. 

9  Alexander  v.  Swackhamer,  105  Ind.  81  ;  55  Am.  Hep.  180. 

10  Alexander  ?;.  Swackhamer,  105  Ind.  81  ;  55  Am.  Rep.  180  ;  citing* 
Hills?'.  SnHI,  lot  Mass.  IT:;;  (i  Am.  Hep.  21H  ;  liurbank  v.  Crook.-.-,  7 
Gray,  158  ;  Vincent  v.  Cornell,  13  Pick.  234. 

11  See  Hunt  ?'.  Wyman,  100  Mass.  98  ;  Kohler  v.  Hayes,  41  Cal.  455  ; 
Carter  v.  Kingman,  io:i  Mass.  517. 

12  See  Austin  v.  Dye,  46  N.  Y.  500. 

13  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  303, 
381. 

14  See  Wait  v.  Green,  35  TJarb.  5S5  ;  S.  C.  62  Barb.  241  ;  S.  C.  30  N.  Y. 
556  ;  or  Langdell's  Cases  on  Sales,  72.5. 

§  195.  Delivery  as  waiver  of  condition.  —  Need  of  deter- 
mining question.  The  difficulty  in  determining  the 
exact  character  of  contracts  of  sale  attended  with  special 
stipulations,1  is  enhanced  by  the  fact  that  it  is  often 
necessary  to  determine  not  only  whether  there  is  such 
a  condition  attached  to  the  contract  of  sale,  but  also 
whether  there  has  not  been  a  waiver  of  such  condition.2 

Delivery  not  decisive.  Delivery  of  itself  would  not, 
ordinarily,  according  to  the  prevailing  view,  amount  to 
such  a  waiver  of  a  condition  requiring  previous  or  con- 
temporaneous payment  or  security;3  but  the  inference 
derived  from  such  an  act  would  be  rebuttable  by  other 
manifestations  of  intention  to  retain  the  title.4 

Protection  of  bona  fide  purchaser.  Yet  it  has  been  at- 
tempted to  maintain  in  this  regard  a  distinction  in  bo- 
half  of  bona  fide  purchasers,  identical  with  that  which 
governs  fraudulent  sales.5  In  this  view  it  lias  been 
maintained  that  mere  delivery,  even  though  qualified, 


283  BONA  FIDE   PURCHASERS.  $    193 

is,  so  far  as  the  rights  of  innocent  purchasers  are  af- 
fected, a  waiver  of  conditions  precedent,6  and  even  in 
cash  sales,  of  conditions  concurrent.7 

Prei^alcnt  counter-view.  But  the  weight  of  authority 
favors  the  view  that  bona  fide  purchasers  must  stand 
upon  the  title  of  their  vendors,8  and  that  since  delivery 
to  the  latter  is  often  immaterial,  and  at  all  events  inde- 
cisive as  to  the  transfer  of  title,9  it  cannot  have  greater 
potency  in  conferring  a  title  upon  one  who  has  not 
otherwise  acquired  it.10 

1  See  latter  part  of  preceding  section  of  book. 

2  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 381. 

3  See  citations  in  next  note. 

4  Article  on  '*  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 381. 
And  consult  Farlow  v.  Ellis,  15  Gray,  229  ;  Langdell's  Cases  on  Sales, 
720. 

5  See  Mears  v.  Waples,  4  Houst.  79 ;  Hall  v.  Hinks,  21  Md.  406  ; 
Vaughn  r.  Hopson,  14  Bush,  337  ;  Old   Dominion  Steamship   To.  ?•. 
Burckhardt,  31  Gratt.  664  ;  Mich.  Central  it.  II.  Co.  v.  Phillips,  60  111. 
1!)0,  194 ;  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 176  ;  note  to  \Vil- 
li'irns  v.  Merle,  25  Am.  Dec.  614.    But  consult  contra,  Andrews  v.  Cox, 
42  Ark.  473  ;  48  Am.  Rep.  68,  71. 

6  Brundage  v.  Camp,  21  111.  233 ;  Van  Duzor  v.  Allen,  90  111.  499. 

7  Comer  v.  Cunningham,  77  N.  Y.  391 ;  Goodwin  r.  Bradley,  63  111. 
553.    And  see  Smith  v.  Lynes,  1  Sold.  41 ;  Langdell's  Cases  0:1  Salts, 
724  ;  Holllngs worth  ?>.  Napier,  3  Caines,  182  ;  Western  Transportation 
Co.  v.  Marshall,  37  Barb.  509.    Consult  2  Schouler  on  Personal  Prop- 
erty, \  300.    And  compare  Stadtfeldt  v.  Huntsman,  92  Pa.  St.  53  ;  37 
Am.  Rep.  661,  n.  664. 

8  See  citations  in  subsequent  note.    And  consult   Harkness  v. 
Russell,  118  U.  S.  663,  672,  et  seq,  fully  reviewing  the  authorities  in  the 
various  States  ;  Andrews  v.  Cox,  42  Ark.  473  ;  4S  Am.  Rep.  6S,  71 ;  note 
to  Williams  v.  Merle,  25  Am.  Dec.  615 ;  Heinbocke  v.  Zugbaum,  5 
Mont.  344  ;  51  Am.  Rep.  59. 

9  See  preceding  portion  of  section. 

10  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 1st, 
382;  eiti:ig,  Sunders  v.  Keeber,  28  Ohio  St.  6oO;  Coggill  v.  Hartford 
etc.  R.  11.  'Co.  3  Gray,  545;  Langdell's  Cases  on  Sales,  713  ;  Parmelee 
v.  (  ath-rwood,  J'.fi  Mo.  439  ;  Pitts  v.  Owen,  d  Wis.  145.  And  consult  2 
Schouler  on  Personal  Property,  \  300. 

$193-  Sailer's  possession. —  Custodian1*  s  second  sale.  It 
is  immaterial,  except  as  to  creditors,  that  the  possession 
remains  with  the  vendor,  where  he  has  parted  with  the 
title,  as  he  is  then  a  mere  custodian.1  Hence  his  second 


§   197  BONA  FIDE   PURCHASERS.  284 

sale  is  a  conversion,  even  if  he  is  still  unpaid,2  and  can 
convey  no  title  to  a  bonafide  purchaser.3 

Restored  documents  of  title.  The  same  principle  woul  d 
apply  where  the  vendor  disposed  of  documents  of  title 
which  were  restored  to  him  for  a  special  purpose;4  as 
where  warehouse  receipts,  returned  to  him  so  that  he 
could  repack  pork  which  he  had  sold,  were  pledged  by 
him  with  a  bank,  which  transferred  them  to  an  innocent 
purchaser.5 

1  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 382. 

2  Chinery  v.  VialL  5  Hurl.  <fe  N.  288. 

3  Stanley  v.  Gaylord,  1  Gush.  536 ;  48  Am.  Dec.  P43  ;  Newcomb- 
Buchanan  Co.  v.  Baskett,  14  Bush,  658.    But  see  contra,  note  to  Wil- 
liams r.  Merle,  25  Am.  l>ec.  615  ;  citing,  Cullom  r.  Gnillot,  18  La.  An. 
60<3  ;  Shaw  v.  Levy,  17  Serg.  <fe  R.  99.    And  compare  Hubbard  v.  Bliss, 
12  Allen,  590  (second  sale  after  condition  broken). 

4  See  case  cited  in  next  note. 

5  Benton  i\  Curyea,  40  111.  320.    See  article  on  *•  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,  382. 

§  197.  Transfers  by  fraudulent  vendeas.  —  Protection  of 
bonafide  purchaser.  Where  a  sale  is  effected  by  fraudu- 
lent inducements  and  completely  consummated,  and 
the  fraudulent  vendee  makes  a  further  transfer  to  an 
innocent  party  who  buys  for  value  and  without  notico, 
such  bona  fide  purchaser  takes  a  clear  title.1  As  the 
doctrine  has  been  recently  expressed,  if  the  owner  of 
goods  is  induced  by  fraudulent  representations  to  de- 
liver property  to  an  irresponsible  purchaser,  in  pursu- 
ance of  a  contract  of  sale  to  him,  and  such  purchaser, 
while  in  possession,  transfers  it  for  a  valuable  considera- 
tion to  a  third  person,  who  acts  in  good  faith,  without 
notice  of  the  fraud,  the  title  of  the  good-faith  purchaser 
will  prevail  over  that  of  the  first  owner.2 

Exceptional  character.  At  first  the  tendency  was  to 
treat  the  protection  thus  accorded  to  the  bonafide  pur- 
chaser from  a  fraudulent  vendee  as  an  arbitrary  ex- 
ception,3 akin  to  that  founded  on  commercial  usage  in 


285  BONA    FIDE   PURCHASERS.  \   197 

the  case  of  negotiable  paper,4  or  on  ancient  custom  in 
the  case  of  markets  overt.5  Since  fraud  vitiates  every 
contract  into  which  it  enters,  it  was  regarded  as  plain 
enough,  despite  the  suggestion  that  the  property  was 
changed,6  that  the  fraudulent  vendee  had  no  title,  and 
therefore,  ordinarily,  could  convey  none;7  but  it  was 
considered  that  a  bona  fide  purchaser  having  innocently 
parted  with  value,  was  a  special  favorite  of  the  law,  to 
whom  such  a  rule  was  inapplicable.8 

Voidable  title,  etc.  The  modern  tendency,  however, 
is  to  regard  the  title  of  the  fraudulent  vendee  as  not 
voidable  at  the  instance  of  the  original  seller,9  before 
the  goods  have  passed  into  the  hands  of  a  bona  fide  pur- 
chaser, who  takes  the  property  freed  from  the  taint  of 
fraud  to  which  he  was  neither  party  nor  privy,10  though 
in  some  jurisdictions,  in  justifying  the  protection  of 
the  bona  fide  purchaser,  stress  is  laid  rather  upon  his 
superior  equity  to  the  original  seller,  who  is  estopped 
from  asserting  his  rights  by  his  conduct  in  conferring 
the  ostensible  proprietorship  upon  the  fraudulent 
vendee.11  Yet  in  comparatively  late  cases,  and  even  in 
those  of  the  most  recent  date,  the  contract  is  still  treated 
as  void,12  and  the  title  as  not  passing,13  while  subse- 
quently to  the  enunciation  of  the  doctrine  that  the  title 
of  the  fraudulent  vendee  was  merely  voidable  or  de- 
feasible,14 it  was  still  said  to  be  not  easily  explainable 
"how  goods  which  never  vested  in  the  vendee  can  be 
transferred  by  him,  so  as  to  give  the  purchaser  a  good 
title."15 

1  See  Rowley  ?>.  Bigelow,  2  Pick.  307 ;  23  Am.  Dec.  607  ,  Barnard 
v.  Campbell,  Go  Barb.  2s<; ;  55  N.  Y.  45(5 ;  58  N.  Y.  73  ;  or  17  Am.  Hep.  2,H  ; 
Old  Dom.  Steamship  Co.  v.  Burcklmrdt,  31  Gratt.  (56-1  ;  note  to  \Vil- 
li'ims  ?'.  Merlo,  25  Am.  Dec.  <>13.    Fraudulent  sales  of  copyrighted 
book:  Henry  Bill  Pub.  Co.  v.  Wmythe,  27  Fed.  Rep.  914. 

2  Alexander  v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  180  ;  citing, 
Curme  v.  Rauh,  100  Ind.  247  ;  Parrish  v.  Thurston,  87  Ind.  4:17. 

3  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
382. 


§   198  BONA   FIDE    PURCHASERS.  286 

4  See  Barnard  v.  Campbell,  53  X.  Y.  453,  460. 

5  Soe  F-iwcett  v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278  ;  sections  on 
MARKETS  OVERT. 

6  McCarty  v.  Vickery,  12  Johns.  348. 

7  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  382. 

8  See  Mowrey  v.  Walsh,  8  Cowen,  238. 

9  See  Stevens  v.  Hyde,  32  Barb.  ISO. 

10  See  Rowley  ?».  Bigelow,  12  Pick.  307 ;  23  Am.  Dec.  607  ;  Stevenson 
u.  Newnham,  13  Com.  B.  2s5;  22  Law  J.  Corn.  P.  10;  Old  Dominion 
Steamship  Co.  v.  Burckhardt,  31  Gratt  664. 

1 1  See  Barnard  v.  Campbell,  65  Barb.  286 ;  S.  C.  55  N.  Y.  456  ;  5S  N.  Y. 
7) ;  or  17  Am.  Rep.  20S ;  Root?'.  French,  13  Wend.  572  ;  28  Am.  Dec.  428  ; 
Sal+us  v.  Everett,  20  Wend.  275 ;  32  Am.  Dec.  541 ;  Cochran  v.  Stewart, 
21  Minn.  440. 

12  Hall  v.  Hinks,  21  Md.  417. 

13  Barnard  v.  Campbell,  65  Barb.  288 ;  Butler  v.  Collins,  12  Cal.  457, 
and  cases  reviewed. 

14  See  Rowley  v.  Bigelow,  12  Pick.  307 ;  23  Am.  Dec.  607. 

15  George  v.  Kimball,  24  Pick.  241.    See  article  on  "  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,  386. 

I  198.  Superior  equity  of  innocent  purchaser.  —  Occa- 
sioning loss,  etc.  A  reason  for  the  favor  shown  to  a 
bonafide  purchaser  from  a  fraudulent  vendee  has  been 
found  in  New  York,  and  elsewhere,  in  the  equitable 
principle  that  when  one  of  two  innocent  persons  must 
suffer  by  the  acts  of  a  third,  he  who  enabled  such  third 
party  to  occasion  the  loss  must  sustain  it.1 

Conflicting  maxims,  etc.  This  position  was  maintained 
in  the  face  of  the  criticism  that  the  fraud  was  the  owner's 
misfortune,  not  his  fault ;  that  if  he  was  to  blame  for 
parting  with  the  possession,  then  the  purchaser  from  a 
converting  bailee  would  on  like  grounds  also  be  pro- 
tected ;  and  further,  that  the  real  maxim  of  equity  in 
such  a  conflict  of  claims  was  that  tho  right  which  was 
prior  in  time  should  prevail.2 

Overcoming  owner's  legal  rights.  For  it  was  asserted, 
originally  upon  the  analogy  of  negotiable  paper,  that  in 
this  instance  the  superior  equity  of  the  innocent  pur- 
chaser,3 though  subsequent  in  time,  overcame  the  legal 
rights  of  the  owner,  as  in  the  equality  of  legal  rights, 


287  BONA  FIDE   PURCHASERS.  §  199 

the  supervening  equity  prevailed.4  But  this,  it  was 
objected,  was  only  creating  a  fresh  exception,5  without 
investing  the  purchaser  with  the  legal  title,  though  it 
was  only  upon  the  strength  of  the  right  of  possession 
involved  in  such  legal  title,  that  the  purchaser  could  re- 
cover the  property  in  cases  where  the  owner  had  re- 
possessed himself  of  it.6 

Estoppel  of  owner,  etc.  It  is  substantially  laid  down, 
however,  that  the  innocent  purchaser  from  a  fraudulent 
buyer  has  not  a  perfect  title,  but  a  superior  equity, 
based  on  the  estoppel  of  the  latter  from  setting  up  his 
rights  after  having  conferred  on  his  vendee  the  apparent 
ownership.7  In  such  a  case,  it  is  declared,  the  superior 
equity  of  the  honest  purchaser  is  allowed  to  overcome 
the  legal  rights  of  the  owner,  and  this  is  said  to  be  the 
only  instance  in  which  our  law  divests  the  title  to  prop- 
erty without  the  owner's  consent  or  default.8 

1  Boot  v.  French,  13  Wend.  572  ;  28  Am.  Dec.  428.    And  see  Mal- 
com  v.  Loveridge,  13  Barb.  372  ;  Barnard  v.  Campbell,  55  N.  Y.  459 ; 
Somes  v.  Brewer,  2  Pick.  202  ;  13  Am.  Dec.  406  ;  George  v.  Kimball,  24 
Pick.  241 ;  Kingsbury  v.  Smith,  13  N.  H.  103  ;  Cochran  v.  Stewart,  21 
Minn.  438  ;  White  v.  Garden,  10  Com.  B.  926 ;  Moyce  v.  Newington, 
Law  R.  4  Q.  B.  D.  32  ;  28  Eng.  Rep.  674. 

2  Ash  v.  Putnam,  1  Hill,  30fi.    The  maxim  "he  who  trusts  most 
shall  lose  most,"  is  regarded  as  more  than  overcome  by  the  principle 
of  the  counter-maxim  caveat  ernptor:  See  Fawcett  v.  Osborn,  32  111. 
425 ;  83  Am.  Dec.  278. 

3  See  Root  v.  French,  13  Wend.  570  ;  28  Am.  Dec.  428 ;  Andrews  v. 
Dietrich,  14  Wend.  34. 

4  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 383. 

5  Ash  v.  Putnam,  1  Hill,  307. 

6  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 383. 

7  Barnard  ?>.  Campbell,  65  Barb.  286 ;  S.  C.  -55  N.  Y.  450  ;  S.  C.  58 
N.  Y.  73;  or  17  Am.  Rep.  208.    As  stated  in  article  on  "Title  from 
Fraudulent  Vendees,"  7  South  Law  Rev.  549,  558. 

8  Barnard  v.  Campbell,  65   Barb.  286,   288,  289.     Compare  final 
opinion  in  58  N.  Y.  73,  75,  or  17  Am.  Rep.  208. 

§  199.  Estoppel  of  owner.  —  Statement  of  doctrine.  The 
principle  which  justifies  the  protection  of  a  bona  fide 
purchaser  from  a  fraudulent  vendee,  as  laid  down  in 
New  York,  is  declared  to  be  founded  upon  the  idea  that 


\  199  BON  A  FIDE  PURCHASERS.  288 

where  one  trusts  a  party  with  the  possession  and  appar- 
ent ownership  of  property,1  voluntarily  parting  with 
the  possession  in  the  form  of  a  sale,  he  puts  it  in  the 
power  of  his  vendor  to  deceive  an  innocent  purchaser, 
and  therefore  he  cannot  enforce  his  right  to  retake  the 
property  against  one  whom  that  party  has  deceived, 
provided  the  latter  has  acted  all  the  while  in  entire  good 
faith,  and  paid  his  money  for  the  property.2  In  such 
instances  the  equitable  rule  is  said  to  apply,3  that  where 
one  of  two  innocent  persons  must  suffer  loss  by  reason 
of  the  fraud  or  deceit  of  another,  the  loss  should  fall 
upon  him  by  whose  act  or  omission  the  wrong-doer  has 
been  enabled4  to  commit  the  fraud.3 

Equitable  estoppel  raised  ~by  law.  Just  as  there  are 
various  exceptional  instances  in  which  the  law  relieves 
the  buyer  of  merchandise  from  the  rule  of  caveat  emptorf 
as  applied  to  the  title,7  so  in  favor  of  one  acting  with  ordi- 
nary caution  and  prudence  in  the  usual  course  of  busi- 
ness, and  as  against  those  who  have  voluntarily  conferred 
upon  others  the  usual  evidences  of  ownership  or  prop- 
erty, or  an  apparent  authority  to  deal  with  it  and  dispose 
of  it,8  it  is  asserted  that  the  law  for  obvious  reasons,  and 
with  manifest  justices,  raises  an  equitable  estoppel.9 

Apparent  and  real  title  and  authority.  Applying  the 
principle  that  the  loss  should  fall  on  those  aiding  or 
abetting  the  fraud,  or  enabling  it  to  be  committed,10  the 
law  is  said  to  declare  that  the  apparent  title  or  authority 
which  exists  by  the  act  or  omission  of  such  parties 
shall,  so  far  as  concerns  persons  acting  and  parting  with 
value  upon  the  faith  of  it,  stand  for  and  be  regarded  as 
the  real  title  and  authority.11 

Analogy  and  objections.  By  assimilation  to  the  famil- 
iar rule  of  agency,  which  protected  parties  wrho  relied 
on  a  factor's  apparent  authority,  the  buyer  was  in  this 
case  justified  for  trusting  to  the  appearance  of  prop- 


289  BONA  FIDE  PURCHASERS.  §  200 

erty.12  But  a  difficulty  suggested  is  that  such  apparent 
authority  might  exist  in  one  who  had  no  title  to  convey, 
as  a  mere  bailee  who  was  intrusted  with  the  property 
and  the  documents  of  title  ; 13  and  yet  it  was  never  con- 
tended that  the  owner  was  estopped  as  against  a  pur- 
chaser, however  innocent,  from  such  a  converter.14 

1  Effect  of  apparent  authority  :  See  Saltus  v.  Everett,  20  Wend. 
279 ;  32  Am.  Dec.  541 ;  Malcom  v.  Loveridge,  13  Barb.  372  ;  l)o\vs  /•. 
Hush,  28  Barb.  157  ;  Craig  v.  Marsh,  2  Daly,  61 ;  Combes  v.  Chandler, 
33  Ohio  St.  184. 

2  Barnard  v.  Campbell,  65  Barb.  290,  291 ;  citing  the  charge  of  the 
judge  at  the  trial. 

3  See  preceding  section  on  SUPERIOR  EQUITY,  etc. 

4  Doctrine  in  more  general  form,  first  applied  in  Root  v.  French, 
13  Wend.  572;  28  Am.  Dec.  428  ;  criticised  in  Ash  v.  Putnam,  1  Hill, 
306 ;   adopted  In  Malcom  v.  Loveridge,  13  Barb.  372 ;   Kingsbury  r. 
Smith,  13  N.  H.  109 ;   Cochran  v.  Stewart,  21  Minn.  438  ;    White  v. 
Garden,  10  Com.  B.  926;  Somes  v.  Brewer,  2  Pick.  202;  13  Am    Dec. 
406  ;  George  v.  Kimball,  24  Pick.  241. 

5  Barnard  v.  Campbell,  55  N.  Y.  459.    See  article  on  "  Title  from. 
Fraudulent  Vendees,"  7  South.  Law  Rev.  549,  558. 

6  Caveat  emptor :  See  1  Bouvier  Law  Diet.  (14th  ed.)  248. 

7  See  Fawcett  v.  Osborn,  32  111.  425  ;  83  Am.  Dec.  278. 

8  See  Leigh  v.  Mobile  etc.  R.  R.  Co.  58  Ala.  165, 178. 

9  Barnard  v.  Campbell,  55  N.  Y.  460.    And  see  Ash  v.  Putnam,  1 
Hill,  407  ;    Moore  v.  Metropolitan  Nat.  Bank,  55  N.  Y.  41 ;   Combes 
v.  Chandler,  33  Ohio   St.   184;   article  on  "Title   from  Fraudulent 
Vendees,"  7  South.  Law  Rev.  N.  S.  549,  559;  McNeil  v.  Tenth  Nat. 
Bank,  46  N.  Y.  325  ;  as  quoted,  Barstow  v.  Savage  Mining  Co.  64  Cal. 
388;  49  Am.  Rep.  705  ;  article  on  "Conversion  by  Purchase,"  15  Am. 
Law  Rev.  363,  386  ;  citing,  Hall  v.  Hinks,  21  Md.  418  ;  Old  Dominion 
Steamship  Co.  v.  Burckhardt,  31  Gratt.  681. 

10  See  preceding  portion  of  section. 

11  Barnard  v.  Campbell,  55  N.  Y.  460.    Compare  final  opinion  in  58 
N.  Y.  73,  or  17  Am.  Rep.  208. 

12  See  Somes  v.  Brewer,  2  Pick.  201 ;  13  Am.  Dec.  406 ;  article  on 
«'  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  383. 

13  Unauthorized  sales  by  bailees:  See  §  184.    Documents  of  title  : 
See  chapter  on  that  subject.    Fraudulent  pledge  by  broker  of  cus- 
tomer's shares  put  in  his  keeping  for  sale,  and  estoppel  of  owner  to 
claim  against  innocent  pledgee  :  Burton's  Appeal,  9'i  Pa.  St.  214. 

14  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  383. 
Besides  it  is  not  always  easy  to  explain  the  function  of  estoppel  in 
passing  the  title,  in  cases  where  the  bonafl.de  purchaser  recovered 
the  goods  from  the  owner  who  had  retaken  them  :  See  discussion 
just  cited. 

g  200,    Voidable  or  defeasible  title.  —  Derivation  of  doc- 
trine.   The  tendency  of  the  modern  cases  is  to  adopt  a 
NEWMARK  SALKS.  — 25. 


§   200  BONA  FIDE   PURCHASERS.  290 

view  based  on  a  closer  analysis  of  the  fraudulent  ven- 
dee's title,  and  which  may  have  been  suggested  by  the 
instance  of  a  prima  facie  title1  afforded  by  markets 
overt,2  or  by  the  inclination  to  treat  the  contracts  of  in- 
fants as  voidable  and  not  void;  *  but  it  seems  to  have 
been  more  immediately  derived4  from  the  analogy  of 
real  property,  where  a  like  distinction  was  maintained.5 
Transfer  of  title.  The  title  of  the  fraudulent  vendee 
had  been  assumed  to  be  utterly  void  ; 6  but  this  view  of 
the  contract  as  entirely  null  implied  that  the  vendee 
might  take  advantage  of  his  own  wrong  and  treat  it  as 
such ; 7  whereas  it  was  merely  voidable  at  the  election 
of  the  vendor.8  The  question  arises,  however,  whether 
this  means  that  the  contract  is  void  until  ratified  by 
the  defrauded  owner,  or  valid  until  rescinded.9  If  the 
former  be  the  case,  and  the  title  does  not  pass  at  the 
time  of  the  sale  upon  delivery,  it  is  asked  when  it  does 
pass,  and  whether  it  remains  forever  in  the  clouds,  or 
in  nubibus,  and  what  definite  act  is  essential  to  pass  it 
afterwards.10  It  has  been  considered  not  enough  to  say 
that  the  title  passes  or  not,  as  the  vendor  pleases,11 
since  the  very  right  of  rescission  implies  the  subsistence 
of  the  contract,  for  there  can  hardly  be  a  revocation  of 
a  transfer  which  never  took  place,  and  there  must  have 
been  a  title  for  the  owner  to  disaffirm,  as  well  as  a  title 
to  convey  to  the  innocent  purchaser.12  The  conclusion 
is  accordingly  deemed  irresistible  that  a  fraudulent 
vendee  of  chattels,  where  there  is  an  absolute  and  un- 
qualified delivery  with  intent  to  transfer  the  property, 
acquires  the  title,  though  it  be  merely  a  naked,  void- 
able, defeasible  title,13  and  that  on  a  sale  by  such 
vendee  the  title  passes  to  a  bonafide  buyer.14 

Consent  to  transfer.  In  such  a  case  there  is  no  room 
for  the  application  of  the  doctrine  that  no  one  can  be 
divested  of  his  property  except  by  his  own  consent  or 


291  BONA  FIDE  PURCHASERS.  §   201 

by  operation  of  law,15  for  the  owner  in  this  instance  has 
consented  to  the  transfer  of  his  title  as  well  as  his  pos- 
session;16 and  this  consent  is  binding,  by  whatever 
artifice  it  was  produced,17  since  when  a  compact  is  con- 
summated, the  motive  that  led  to  such  a  deliberate  act 
cannot  alter  its  obligatory  character.18 

1  See  White  v.  Garden,  10  Com.  B.  924. 

2  Markets  overt :  See  \\  178-180. 

3  Seo  Walk.  Am.  Law  (4th  ed.)  427. 

4  According  to  article  on  "  Conversion  by  Purchase,"  15  Am.  Law 
Rev.  363,  384. 

5  See  Somes  v.  Brewer,  2  Pick.  184, 201 ;  13  Am.  Dec.  406. 

6  See  Stevens  v.  Hyde,  32  Barb.  175. 

7  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 384. 

8  See  Matteawan  Co.  v.  Bentley,  13  Barb.  644  ;  Ayres  v.  Hewitt, 
19  Me.  281 ;  Stevenson  v.  Newnham,  13  Com.  B.  285. 

9  See  Oakes  v.  Turquand,  2  Eng.  &  Ir.  App.  275. 

10  Stevens  v.  Hyde,  32  Barb.  180.    The  further  inquiry  made  is,  at 
what  precise  moment  thereafter  the  title  of  the  vendor  is  divested, 
and  when  it  can  be  said  with  certainty  that  the  one  has  parted  with 
and  the  other  acquired  the  title :  Stevens  v.  Hyde,  32  Barb.  180. 

11  See  George  v.  Kimball,  24  Pick.  241. 

12  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 384. 

13  See  Rowley  v.  Bigelow,  12  Pick.  307  ;  23  Am.  Dec.  607. 

14  Article  on  "  Conversion  by  Purchase,  15  Am.  Law  Rev.  363,  384. 

15  See  Saltus  r.  Everett,  20  Wend.  267  ;  32  Am.  Dec.  541 ;  Fawcett 
v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278,  281. 

16  See  Old  Dom.  Steamship  Co.  v.  Burckhardt,  31  Gratt.  664. 

17  Article  on  "  Title  from  Fraudulent  Veiulees,"  7  South  Law  Rev. 
N.  S.  549. 

18  Oakes  v.  Turquand,  2  Eng.  &  Ir.  App.  3 10  ;  Somes  v.  Brewer,  2 
Pick.  201  ;  13  Am.  Dec.  406;  from  which  it  appears  that  such  is  also 
the  reasoning  of  the  civil  and  the  Scotch  law.    See  Pothier  on  Obli- 
gations, pt.  1,  ch.  1,  art.  3,  §  1,  No.  29,  and  Brown  on  Sales,  396. 

g  2D1.  Title  of  innocent  purchaser,  —  Liability  to  avoid- 
ance. The  doubt  has  been  suggested  whether  an  inno- 
cent purchaser  does  not  take  the  title  with  all  its  defects, 
so  that  it  is  still  liable  to  avoidance  in  his  hands,1  and 
whether  the  conveyance  of  a  defeasible  title  can  transfer 
aught  but  a  defeasible  title.2 

Party  not  privy  to  fraud.  But  the  answer  to  this  is 
said  to  be,  that  the  bona  fide  purchaser  not  only  failed 


g   202  BONA  FIDE  PURCHASERS.  292 

to  participate  in  the  fraud,  but  was  not  even  aware  of 
its  perpetration,3  and  should  not  suffer  its  penalty.* 
Since  delay  gives  the  aspect,  of  ratification,  the  owner 
should  exercise  due  diligence  in  rescinding,5  and  his 
demand  comes  too  late  when  the  goods  have  passed 
into  the  control  of  an  innocent  purchaser ; 6  for  such  an 
option  to  rescind  a  contract  for  fraud 7  is  a  legal  privilege, 
not  binding  upon  one  who  was  not  privy  to  the  fraud.8 
Removal  of  element  of  defeasibility .  Hence,  it  is  sug- 
gested that  such  option  is  not  enforcible  against  the 
bona  fide  purchaser,  who  obtains  a  perfect  title  free 
from  the  possibility  of  impairment,  not  by  virtue  of  the 
transfer  itself,  for  no  one  can  convey  a  better  title  than 
he  has,9  but  an  operation  of  law,  which  eliminates  from 
the  title  an  element  of  it  which  is  no  longer  applicable.10 

1  See  citations  in  next  note. 

2  See  argument  in  Williamson  v.  Russell,  39  Conn.  406  ;  article  on 
"Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  384. 

3  See  Rowley  v.  Bigelow,  12  Pick.  307 ;  23  Am.  Dec.  607  ;  Steven- 
son v.  Newniuun,  13  Com.  B.  285  ;  22  Law  J.  Com.  P  10. 

4  Article  on  "  Conversion  by  Purchase,"  15  A  m.  Law  Rev.  363, 385, 

5  Diligence  in  rescission  generally:  See  2  Bouvier  Law  Diet,  tit. 
Rescission  of  Contracts  (14th  ed.),  468. 

6  See  Old  Dominion  Steamship  Co.  v.  Buickhardt,  31  Gratt.  664. 

7  See  Stevenson  v.  Nownham,  13  Com.  B.  2&> ;  22  Law  J.  Com.  P. 
10. 

8  See  Rowley  t>.  Bier  low,  12  Pick.  "Ofi  ;  23  Am.  Dec.  607 ;  article  on 
"  Conversion  by  Purcli-.se,"  15  Am.  Law  Rev.  363,  385. 

9  See  Leigh  ?«.  MoMle  etc.  R.  R,  Co.  58  Ala.  165,  176;  Barnard  v. 
Campbell,  55  JS~.  Y.  45<i,  -.(JO ;  Fawcett  v.  Osboru,  32  111.  425  ;  83  Am.  Dec. 
273,  -*2  ;  Evansville  etc.  R.  R.  Co.  v.  Erwin,  84  Ind.  457,  466  ;  Alexan- 
der v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  180, 184. 

10  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363. 
385.  And  it  is  only  in  this  sense  of  the  removal  of  an  element  of 
defeasibility  that  the  innocent  purchaser  can  ever  be  said  to  have  a 
"superior  title,1' as  is  declared  in  Wickham  v.  Martin,  13  Gratt.  431, 
and  Old  Dominion  Steamship  Co.  v.  Burckhardt,  31  Gratt.  683. 

§  202.  Title  of  fraudulent  vendee.  Result  of  analysis. 
The  result  of  the  analysis  of  the  nature  of  the  fraudu- 
lent vendee's  title  is  that  in  the  first  instance  the  prop- 
erty passes  in  the  subject-matter,  and  an  innocent 


293  BONA  FIDE   PURCHASERS.  $    203 

purchaser  from  the  fraudulent  possessor1  may  acquire 
an  indefeasible  title  to  it,  though  it  is  voidable  between 
the  parties.2 

Established  doctrine.  And  it  must  be  considered  as 
established  that  the  fraud  only  gives  a  right  to  rescind 
a  contract  of  purchase  ;  that  the  property  vests  until 
avoided  ;3  and  that  all  the  mesne  dispositions  to  parties 
not  parties  to  the  fraud,  or  at  least  not  cognizant  thereof, 
are  valid.4 

1  Or  rather,  from  the  fraudulent  vendee:  See  Old  Dominion 
Steamship  Co.  v.  Burckhardt,  31  Gratt.  664. 

2  Stevenson  v.  Newnham,  13  Com.  B.  285  ;  22  Law  J.  Com.  P.  10. 

3  See  Mears  v.  Waples,  3  Houst.  581. 

4  Stevenson  v.  Newnham,  13  Com.  B.  285 ;  22  Law  J.  Com.  P.  10. 
And  even  upon  the  flexible  ground  of  public  policy  this  conclusion 
has  been  justified,  because  if  it  were  otherwise  between  the  parties 
it  would  sometimes  prove  prejudicial  to  the  vendor  himself,  whose 
interest  it  may  be,  under  some  circumstances,  to  treat  the  contract 
as  valid :  Williams  v.  Given,  6  Gratt.  268.    And  it  is  further  declared 
that  as  to  innocent  purchasers,  it  would  be  a  rule  fraught  with  great 
evil  to  make  them  responsible  for  every  fraud  practiced  in  the  course 
of  the  derivation  of  their  title  :  Williams  v.  Given,  6  Gratt.  268.    See 
article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  385. 

#  203,  Statements  of  doctrine.  —  Exposition  generally 
followed.  According  to  the  exposition  of  the  doctrine 
treating  the  title  of  the  fraudulent  vendee  as  voidable 
or  defeasible,  which  is  most  frequently  cited  and  most 
generally  followed  in  America,1  the  rule  is  taken  to  be 
well  settled  that  where  there  is  a  contract  of  sale,  and 
an  actual  delivery  pursuant  to  it,  a  title  to  the  property 
passes,  but  one  which  is  voidable  and  defeasible,  as 
between  the  vendor  and  vendee,  if  obtained  by  false  and 
fraudulent  representations.2  It  is  declared  that  the 
vendor,  therefore,  can  reclaim  his  property  as  against 
the  vendee,  or  any  other  person  standing  upon  his  title, 
but  not  against  a  bona  fide  purchaser  without  notice  of 
the  fraud.3  The  ground  of  exception  in  favor  of  the 
latter  is  said  to  be  that  he  purchased  of  one  having  a 
possession  under  a  contract  of  sale,  and  with  a  title  to 


§   204  BONA  FIDE   PURCHASERS.  294 

the  property,  though  defeasible  and  voidable  as  between 
the  parties  to  the  original  sale  and  purchase,  011  the 
ground  of  fraud;4  but  as  the  second  purchaser  takes 
without  fraud,  and  without  notice  of  the  fraud  of  the 
first  purchaser,  he  takes  a  title  freed  from  the  taint  of 
fraud.5 

New  York  view.  In  New  York,  however,  it  is  said 
that  the  superior  equity  of  a  purchaser  of  property  from 
one  who  has  acquired  a  title  defeasible  at  the  election 
of  the  former  owner  and  vendor,  to  that  of  such  owner 
seeking  to  reclaim  his  property,  is  based  upon  the  fact 
that  acting  upon  the  evidence  of  title  which  the  owner 
has  permitted  the  wrong-doer  to  assume  and  possess, 
he  has  been  induced  to  part  with  value,  and  will  be  the 
loser  because  of  the  credit  given  to  the  apparent  owner- 
ship, if  he  is  compelled  to  surrender  the  property.6 

1  See  citations  in  later  notes  of  section. 

2  Rowley  v.  Bigelow,  12  Pick.  307  ;  23  Am.  Dec.  607. 

3  Rowley  v.  Bigelow,  12  Pick.  307  ;  23  Am.  Dec.  607.    Until  the  con- 
tract is  rescinded  or  avoided,  the  title  or  property  in  the  goods  is  in 
the  buyer,  and  he  may  sell  or  dispose  of  them  to  a  bonn  fide  pur- 
chaser for  value,  and  thus  vest  in  him  a  good,  indefeasible,  and  irrevo- 
cable title  to  the  goods :  Mears  v.  Waples,  3  Houst.  581. 

4  See  2  200,  on  VOIDABLE  OB  DEFEASIBLE  TITLE. 

5  Rowley  v.  BigeloW,  12  Pick.  307;  23  Am.  Dec.  607  (1832).    See, 
also,  Kingsbury  v.  Smith,  13  N    H.  10<>  (1842),  Williams  »;.  Given.  6 
Gratt.  268  (1849);  Keyser  v.  Harbeck,  3  Duer,  373  (1854);  Titcomb  v. 
Wood,  38  Me.  563  (1854) ;  Mears  v    Waples,  3  Houst.  581  (1868) ,  S.  C. 
4  Houst.  62  (1869) ;  Old  Dominion  S.  S.  Co.  v.  Burckhardt,  31  Gratt. 
664  (1879).    Consult  article  on  "  Conversion  by  Purchase,"  15  Am.  Law 
Rev  363,  386,  387 

6  Barnard  v.  Campbell,  58  N.  Y.  75  ;  17  Am.  Rep.  208.    See  artinle 
on  Title  from  Fraudulent  Vendees,  7  South.  Law  Rev.  N.  S.  549,  560. 


£  204.  Prevalence  of  exemption. —  Without  definite  or 
consistent  grounds.  In  many  of  the  cases  the  protection 
of  the  bona  fide  purchaser  of  chattels  from  a  fraudulent 
vendee  is  simply  asserted,  without  any  reason  or 
definite  ground  being  given  therefor,1  while  in  others 
it  is  treated  as  an  exception  to  ordinary  rules,  and  the 
title  of  such  fraudulent  vendee  is  declared  to  be  void, 


295  BONA  FIDE   PURCHASERS.  §   204 

so  that  he  has  none  to  convey,  but  yet  the  innocent 
purchaser  is  said  to  acquire  the  property,  because  he 
has  parted  with  value  and  is  ignorant  of  the  fraud.2 

Recognition  in  United  States.  But  though  justified  in 
different  decisions  on  a  variety  of  grounds,  the  protec- 
tion of  the  bonafide  purchaser  from  a  vendee  who  has 
effected  a  sale  by  fraudulent  devices,  or  with  fraudu- 
lent designs,  is  widely  and  almost  universally  recog- 
nized in  this  country.3 

It  may  be  regarded  as  established  in  at  least  the  fol- 
lowing States  of  the  Union :  California,4  Connecticut,5 
Delaware,6  Georgia,7  Illinois,8  Indiana,9  Kansas,10  Ken- 
tucky,11 Maine,12  Maryland,13  Massachusetts,14  Minne- 
sota,15 Mississippi,16  New  Hampshire,17  New  York,18 
Ohio,19  Pennsylvania,20  Tennessee,21  Virginia,22  and  Wis- 
consin.23 

Adoption  in  England.  In  England  the  result  of  recent 
cases24  is  also  to  accord  like  protection,  and  upon  the 
ground  of  the  prevalent  American  doctrine  of  the  void- 
able or  defeasible  title,23  although  stress  is  laid  rather 
on  the  intention  of  the  original  vendor  than  on  the 
actual  transfer  of  the  title.26 

1  West.  Transportation  Co.  v.  Marshall,  4  Abb.  N.  Y.  App.  575 ; 
Trott  v.  Warren.  11  Me.  227 ;  Sparrows  v.  Chesley,  19  Me.  79  ;  Ditson 
v   Randall.  83  Me.  202  ;  Powell  v.  Bradlee,  9  Gill  &  J.  220  ;  Gibson  v. 
Moore,  7  Mon.  B.  92  ;  Ohio  etc.  R.  Co.  t».  Kerr,  49  111.  458  ;  Chicago 
Dock  Co.  v.  Forster,  48  111.  507  ;  Thompson  v.  Lee,  3  Watts  <fe  S.  479  ; 
Sinclair  v.  Healey,  40  Pa.  St.  417 ;  Sargent  v.  Sturm,  23  Cal.  359 ;  83 
Am.  Dec.  118. 

2  Mowrey  v.  Walsh,  8  Cowen,  238  ;  Root  v.  French,  13  Wend.  570 ; 
28  Am.  Dec.  428  ;  Hall  v,  Hinks,  21  Md.  417.    See  article  on  "  Title  from 
Fraudulent  Vendees,"  7  South.  Law  Rev.  N.  S.  549,  560. 

3  See  article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
387  ;  note  to  Williams  v.  Merle,  25  Am.  Dec.  613. 

4  Paige  v.  O'Neal,  12  Cal.  483  ;  Sargent  v.  Sturm,  23  Cal.  359  ;  83 
Am.  Dec.  118. 

5  Thompson  v.  Rose,  16  Conn.  71 ;  Williamson  v.  Russell,  39  Conn. 
406. 

6  Mears  v.  Waples,  3  Houst.  581 ;  S.  C.  4  Houst.  62. 

7  Kern  v.  Thurber,  57  Ga.  172. 

8  Chicago  Dock  Co.  v.  Foster,  48  111.  507 ;  Ohio  etc.  R.  R.  Co.  v. 
Kerr,  49  III.  458. 


g  205  BONA  FIDE   PURCHASERS.  296 

9    Sharp  v.  Jones,  18  Ind.  314 ;  81  Am.  Dec.  359. 

10  Wilson  v.  Fuller,  9  Kan.  76. 

11  Arnott  v.  Cloudas,  4  Dana,  300;  Wood  v.  Yeatman,  15  Mon.  B. 
271. 

12  Neal  t».  Williams,  18  Me.  391 ;  Sparrow  v.  Chesley,  19  Me.  79  ; 
Ditsoii  v.  Randall,  33  Me.  202  ;  Titcomb  v.  Wood,  38  Me.  503. 

13  Powell  v.  Bradlee,  9  Gill  &  J.  220  ;  Hall  v.  Hinks,  21  Md.  406. 

14  "Rowley  r.  Bigelow,  12  Pick.  307  ;  23  Am.  Dec.  607  ;  Hoffman  v 
Noble,  0  Met.  68  ;  39  Am.  Dec.  611 ;  Moody  v.  Blake,  117  Mass.  23  ;  19 
Am.  Rep.  3J4. 

15  Cochran  v.  Stewart,  21  Minn.  435. 

16  Lee  v  Port  wood,  41  Miss.  109. 

17  Kingsbury  v.  Smith,  13  N.  H.  109 ;  Willoughby  v.  Moulton,  47 
N.  H.  205. 

18  Mowrey  v.  Walsh,  8  Cowen,  238  ;  Root  v.  French,  13  Wend.  570  ; 
28  Am.  Dec.  428  ;  Andrews  v.  Dietrich,  14  Wend.  34  ;  Sultus  v.  Everett, 
20  Wend.  267;  32  Am.  Dec.  541;  Malcom  v.  Loveridge,  13  Barb.  372; 
Caldwell  v.  Bartlett,  3  Duer,  341 ;  Keyser  v.  Harbeck,  3  Duer,  373; 
Dows  v.  Rush,  28  Barb.  157;  Stevens  v.  Hyde,  32  Barb.  171 ;  Craig  v. 
Marsh,  2  Daly,  61 ;  Western  Transportation  Co.  r.  Marshall,  4  Abb. 
N.  Y.  App.  575;  Paddon  v.  Taylor,  44  N.  Y.  371  ;  Devoe  r.  Brandt,  53 
N.  Y.  4fi2 ;  Barnard  v.  Campbell.  65  Barb.  286 ;  S.  C.  58  N.  Y.  73 ;  17 
Am.  Rep.  208  ;  Stevens  v.  Brennan,  79  N.  Y.  254. 

19  Dean  v.  Yates,  22  Ohio  St.  388  ;  Combes  v.  Chandler,  33  Ohio  St. 
178. 

20  Thompson  v.  Lee,  3  Watts  &  S.  429  ;  Sinclair  v.  Healey,  40  Pa.  St. 

21  Areniale  v.  Morgan,  5  Sneed,  703;  Hawkins  v.  Davis,  5  Jere 
Baxter,  6U8. 

22  Williams  v.  Given,  6  Gratt.  268 ;  Old  Dominion  Steamship  Co.  v 
Burckhurat,  31  Gratt.  664. 

23  Shufeldt  v.  Pease,  16  Wis.  689  ;  Rice  v.  Cutter,  17  Wis.  362. 

24  Representative  of  these  are :  White  v.  Garden,  10  Com.  B.  919  ; 
20  Law  J.  Com.  P.  1G7  (1851) ;  and  Pease  r.  Gloahec,  Law  R.  1  P.  C.  220  ; 
3  Moore  P.  C'.  N.  S.  5-56  (1866).    The  latest  to  the  same  effect  are  : 
A tten borough  v.  London  &  St.  Katharine's  Dock  Co.  Law  R.  3  Com.  P. 
D.  450  ;  47  Law  J.  Com.  P.  763  (1878) ;  Babcock  r.  Lawson,  Law  R.  4 
Q.  B.  D.  394  ;  Law  J.  48  Q.  B.  524 ;  28  Eng.  Rep.  831 ;  affirmed  in  Law 
R.  5  Q.  B.  D.  284  ;  Law  J.  49  Q.  B.  408  ;  29  Eng.  Rep.  296  (1879). 

25  See  Old  Dom.  Steamship  Co.  v.  Burckhardt,  31  Gratt.  654.    But 
compare  Moyce  v.  Newington,  Law  R.  4  Q.  B.  D.  32  ;  28  Eng.  Rep.  674. 

26  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 387* 

\  205.  Limitations  upon  exemption.  —  Purchaser  from 
fraudulent  possessor.  The  protection  accorded  to  a 
further  transferee  under  a  fraudulent  sale  extends  only 
to  a  bonafide  purchaser  from  a  fraudulent  vendee,1  and 
not  to  such  a  purchaser  from  a  fraudulent  bailee  or 
possessor,2  who  certainly  has  no  better  title  than  any 


297  BOXA  FIDE   PURCHASERS.  §    205 

ordinary  bailee,3  obtaining  the  possession  freely  and 
without  artifice.4  Hence,  the  exemption  does  not 
apply  where  there  is  no  complete  sale,  at  least  to  the 
party  who  secures  the  goods;5  as  where  such  party 
represents  himself  to  be  a  different  person,  or  the  agent 
or  partner  of  a  business  firm  in  good  standing,  and  the 
sale  is  really  made  to  the  parties  thus  personated,  and 
upon  their  credit;6  for  in  such  cases  the  relation  of 
vendor  and  vendee  does  not  exist7  between  the  original 
parties  to  the  transaction.8  Thus,  where  one  is  induced 
by  a  trick  to  deliver  the  possession  of  his  personal 
property  to  a  person  representing  himself  to  be  the 
agent  of  a  well-known  firm,  and  such  delivery  was 
made  under  the  supposition  and  agreement  that  the 
sale  is  to  the  firm,  but  it  turns  out  that  such  pretended 
agent  is  a  stranger  to  the  firm,  there  is  no  actual  sale,9 
and  the  original  owner  will  retain  the  title  to  the  prop- 
erty, even  as  against  a  good  faith  purchaser  from  such 
pretended  agent,  or  his  vendee.10 

Notice,  etc.,  of  fraud.  So  it 's  not  alone  requisite,  ac- 
cording to  the  current  of  authority,  that  the  second 
purchaser  should  be  free  from  participation  in  the 
fraud,  but  that  he  should  be  free  from  notice  of  it,  or 
knowledge  of  circumstances  to  put  him  on  inquiry,11 
such  as  would  usually  arrest  the  attention  of  the 
ordinarily  prudent  business  man.12 

Purchase  for  value.  And  it  is  generally  stated  that 
the  goods  must  not  have  been  taken  merely  in  pay- 
ment of  a  pre-existing  debt,13  but  that  value  must  have 
been  parted  with,  advances  made,  or  liability  incurred 
at  the  time  of  the  transfer,  or  upon  its  strength.14 

1  See  Kowley  v.  Bigelow,  12  Pick.  307;  23  Am.  Dec.  607;  O1(J 
Dominion  Steamship  Co.  v.  Burckhardt,  31  Gratt.  664. 

2  See  citations  given  in  later  note.    Fraudulent  bailee  of  non- 
negotiable  instrument :  Midland  B.  R.  Co.  v.  Hitchcock,  37  N,  J.  -E<i, 
549. 


§   206  BONA  FIDE  PURCHASERS.  298 

3  See  ?  184,  on  UXAUTHORIZKD  SALES  BY  BAILKKS.    No  trans- 
fer of  title  where  bill  of  sale  obtained  by  fraud  :  Hogan  v.  Holeman, 
14  Phila.  484,  594. 

4  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
388.    No  transfer  of  title  to  cattle  obtained  by  forged  order :  Gammel 
v.  Gouts,  1  Tex.  App.  (Civ.  Cas.)  §  1168. 

5  See  authorities   cited   in  next  note.    And  consult  article  on 
"Title  from  Fraudulent  Vendees,"  7  South.  Law  Rev.  N.  S.  549,  501. 

6  Kingsford  v.  Merry,  1  Hurl.  &  N.  503 ;  Higgons  v.  Burton,  26 
Law  J.  Ex.  342;  Hardman  v.  Booth,  1  Hurl.  &  C.  803;  Fowler?-. 
Hollins,  Law  R.  7  Q.  B.  616 ;  41  Law  J.  Q.  B.  277  ;  3  Eng.  Rep.  2C8 ; 
affirmed,  7  Eng.  &  Ir.  App.  757;  14  Eng.  Rep.  1C3;  Lindsay  v.  Cundy, 
Law  R.  2  Q.  B.  D.  96  ;  46  Law  J.  Q.  B.  233 ;  affirmed  as  Cundy  v.  Lindsay, 
Law  R.  3  App.  Cas.  459  ;  24  Eng.  Rep.  345  ;  Saltus  v.  Everett, 20  Wend. 
267 ;  32  Am.  Dec.  541 ;  Fawcett  v.  Osborn,  32  111.  411  ;  83  Am.  Dec.  278  ; 
Barker  v.  Dinsmore,72  Pa.  St.  427;  13  Am.  Rap.  637;  Dean  v.  Yates, 
22  Ohio  St.  383  ;  Moody  v.  Blake,  117  Mass.  23  ;  19  Am.  Rep.  334  ;  Alex- 
ander v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  ISO. 

7  See  Old  Dominion  Steamship  Co.  v.  Burckhardt,  31  Gratt.  664. 

8  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
388.    And  where  parties  consigned  wool  to  a  broker  to  whom  they 
would  not  sell,  on  the  understanding  that  it  was  sold  to  an  undis- 
closed principal  in  good  credit  with  them,  there  is  no  sale  to  the 
broker,  and  he  cannot  convey  a  good  title  to  a  bonct  fiile  purchaser  : 
Rodliff  v.  Dallinger,  141  Mass.  1  ;  £>5  Am.  Rep.  439.    Fraudulent  obtain- 
ing of  tickets  by  agent,  bona  flde  purchaser  not  protected:  Frank  v. 
Ingalls,  41  Ohio  St.  560. 

9  Alexander  v.  Swackhamer,  105  Ind.  81  ;  55  Am.  Rep.  180. 

10  Alexander  v.  Swackhamer,  1C5  Ind.  81 ;  55  Am.  Rep.  180 ;  citing, 
Hamet  v.  Letcher,  £7  Oiiio  St.  ^G;  41  Am.  Rep.  519  ;  Barker  v.  Dins- 
more,  72  Pa.  St.  427  ;  13  Am.  Rep.  679  ;  Moody  v.  Blake,  117  Mass.  23; 
19  Am.  Rep.  394  ;  Cundy  v.  Lindsay,  Law  R.  3  App.  Cas.  459  ;  24  Eng. 
Hep.  345. 

11  Barnard  v.  Campbell,  58  N.  Y.  73  ;  17  Am.  Rep.  203. 

12  Cochran  v.  Stewart,  21  Minn.  4"5 ;  Green  v.  Humphreys,  50  Pa. 
St.  212.    But  see  Mears  v.  WapJes,  4  Houst.  62.    Consult  articles  on 
"  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  3:-8  ;  "  Title  from 
Fraudulent  Vendees,"  7  South.  Law  Rev.  N.  S.  567,  533,  discussing 
good  faith  and  notice. 

13  Root  v.  French,  13  Wend.  570 ;  28  Am.  Dec.  428 ;  Barnard  r, 
Campbell,  58  N.  Y.  73;  17  Am.  Ri-p.  203;  Stevens  v.  Breiinan,  79 
N.  Y.  254;  Sargent  v.  Sturm,  23  Cal.  359  ;  83  Am.  Dec.  118.     Contra, 
Shufeldt  v.  Pease,  16  Wis.  689;  Butters  v.  Houghwout,  42  111.  18. 

14  Barnard  v.  Campbell,  53  N.  Y.  73 ;  17  Am.  Rep.  208  ;  Padden  v, 
Taylor,  44  N.  Y.  371;  Kingsburyv.  Smith,  13  N.  H.  109.    See  article 
on  "Conversion  by  Purchase,"  15  Am.  Law  Rev.  363,  388.    And  con- 
sult discussion  of  consideration  in  article  on  "Title  from  Fraudulent 
Vendees,"  7  South.  Law  Rev.  N.  S.  549,  569.    Taking  a  pledge  of  stock 
as  collateral  security  for  a  pre-existing  debt,  from  one  who  obtained 
the  stock  by  fraudulent  pretenses,  is  not  such  a  purchase  for  value 
as  to  cure  the  defect  in  the  title  or  preclude  the  original  owners  from 
reclaiming  their  stock  on  the  ground  of   its  transfer:    Linnard's 
Appeal,  3  Atl.  Rep.  (Pa.)  840. 

\  236.    Obtaining  goods  by  false    pretenses. — English 
legislation.    In  England  there  is  a  statutory  exception 


299  BONA  FIDE  PURCHASERS.  §  206 

to  the  usual  rule l  which  confirms  the  title  of  the  bona 
fide  purchaser,  made  in  cases  where  the  goods  are 
obtained  by  criminal  false  pretenses.2  In  such  in- 
stances, just  as  where  the  goods  are  procured  by  lar- 
ceny, their  restoration  to  the  owner  is  ordered  upon  the 
conviction  of  the  offender.3  Before  such  enactment  it 
was  held  otherwise ; 4  and  it  has  recently  been  ruled  that 
the  effect  of  the  statute  is  not  to  revest  the  title  in  the 
vendor  as  against  a  bona  fide  purchaser  who  had 
bought  before  the  conviction  : 5  so  that  the  doctrine  is 
assimilated6  to  that  governing  the  purchase  of  stolen 
goods  in  market  overt.7 

View  in  this  country.  In  this  country  it  was  at  first 
attempted  to  create  the  same  exception  in  States  where 
the  offense  of  obtaining  goods  by  false  pretenses  might 
amount  to  felony  ; 8  but  the  doctrine  was  sifted  and 
found  untenable,9  for  it  was  perceived  that  the  nature 
or  degree  of  punishment  which  the  law  may  attach  to 
the  fraudulent  pretense  or  contrivance  cannot  affect  the 
title  of  the  subsequent  innocent  purchaser.10 

1  See  25  Viet.  ch.  96,  §  100,  re-enacting  and  enlarging,  7,  8,  Geo. 
IV.  ch.  29,  §  57. 

2  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 388. 

3  See  enactments  cited  in  note  before  last. 

4  See  Parker  v.  Patrick,  5  Term  Rep.  175,  explained  in  Keyser  v. 
Harbeck,  3  Duer,  329. 

5  Movce  v.  Newington,  Law  R.  4  Q.  B.  D.  32 ;  48  Law  J.  Q.  B.  125  ; 
28  Eng.  Rep.  674.    See,  also,  Lindsay  r.  Cundy,  Law  R.  1  Q.  B.  D.  348, 
Ho? ;  45  Law  J.  Q.  B.  381 ;  dissenting  from  Nickling  v.  Heaps,  21  L.  T. 
R.  754. 

6  Article  on  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  363, 
383,  389. 

7  Markets  overt :  See  \\  178-180. 

8  Andrews  v.  Dietrich,  14  Wend.  31 ;  Robinson  v.  Dauchy,  3  Barb. 
20. 

9  Malcom  v.  Loveridge,  13  Barb.  372  ;  Keyser  v.  Harbeck,  3  Duer, 
373  ;  Cochran  v.  Stewart,  21  Minn.  435 ;  Williams  v.  Given,  6  Gratt.  268. 

10  Williams  v.  Given,  6  Gratt.  268.  See  article  on  "  Conversion  by 
Purchase,"  15  Am.  Law  Rev.  363,  389. 


§  207  FACTORS'  ACTS.  300 

CHAPTER  XV. 
FACTORS'  ACTS. 

§  207.  Factors'  acts  in  general. 

§  208.  Occupations  covered. 

2  209.  Intrusting  goods  or  documents. 

\  210.  Apparent  ownership  or  authority. 

$  207.  Factors'  acts  in  general.  —  Factor's  pledge  at 
common  law.  A  factor  or  commission  merchant1  has 
an  assignable  lien  on  his  principal's  goods  for  advances 
made  ; 2  but  if  he  pledge  beyond  this  for  his  own  use, 
he  is,  according  to  the  strict  construction  of  the  common 
law,  deemed  guilty  of  a  conversion,3  and  the  pledge 
acquires  no  title  to  the  goods  against  a  subsequent  bona 
fide  purchaser  from  the  factor.4 

Pi^evalence  of  these  enactments.  But  the  rigor  of  the 
rule  has  been  modified  by  the  passage  of  factors'  acts 
in  England5  and  Canada,6  and  similar  enactments  in 
many  of  the  States  of  the  Union,7  including  New 
York,*  Massachusetts,9  Alabama,10  California,11  Maine,12 
Ohio,13  Pennsylvania,14  Rhode  Island,  and  probably 
other  States.15 

Usual  provisions.  These  usually  provide  for  the  pro- 
tection of  bona  fide  purchasers  or  pledgees 16  from  the 
factor,  consignee,  or  other  agent  intrusted  with  the 
possession  of  the  goods,17  if  the  transaction  be  in 
the  ordinary  course  of  business,18  without  notice  of  the 
agent's  want  of  authority,19  especially  when  the  agent 
holds  such  documents  of  title  or  control  as  bills  of  lad  - 
ing  or  warehouse  receipts,  or  in  England-dock  warrants, 
delivery  orders,  and  the  like;20  with  the  proviso,  at 
least  under  the  British  decisions,  that  the  goods  were 
transferred  for  advances  made,21  and  not  merely  as 
security  for  an  antecedent  debt.22 


301  FACTORS'  ACTS  §  207 

Protection  independent  of.  Protection  under  such,  or 
like  circumstances,  has  even  been  justified  irrespective 
of  these  statutes,23  at  least  where  the  person  having 
possession  of  the  goods,  and  the  marks  of  title,24  was 
one  who  from  the  nature  of  his  employment  might  be 
presumed  to  have  had  the  right  to  sell  the  property.25 

Theory  of  such  enactments.  And  the  theory  of  such 
legislative  intervention  is,  that  the  innocent  pledgee  is 
justified  in  treating  as  owners  those  whom  the  owners 
have  themselves  clothed  with  the  indicia  of  title.26 

1  See  1  Bouvier  Law  Diet.  tit.  Factor. 

2  Donald  v.  Suckling,  Law  R,  1  Q.  B.  585. 

3  Story  on  Agency,  §  113  ;  McCombie  v.  Davis,  7  East,  5  ;  Wright 
v.  Solomon.  1!)  Cai.  64  ;  79  Am.  Dec.  196.    And  see  Hayes  v.  Campbell, 
55  Cai.  421,  424. 

4  Nowell  v.  Pratt,  5  Cush.  111.    See  '*  Conversion  by  Purchase,'* 
15   Am.    Law    Rev    373 ;    \  188,  on   TRANSFER   BY   FACTOR,  under 
chapter  on  BOJSA  FIDE  PURCHASERS. 

5  4  Geo.  IV  ch.  83  (1823)  ;  6  Geo.  IV.  ch.  94  (1825) ;  5,  6,  Viet.  ch.  39 
(1842) ;  40,  41,  Viet.  ch.  39  (1877).    See  1  Chitty  on  Contracts  (llth  Am. 
ed.),  21)8.  300;  Campbell  on  Sales,  412,  417;  Bennett's  Benjamin  on 
Sales,  p.  20,  $  1!);  and  pp.  922,  926,  \\  809.  80!)  a  ;  Cole  v.  Northwestern 
Bank,  9  C.  P.  470  ;  10  C.  P    354  ;  Johnson  v.  The  Credit  Lyonnuis,  2 
C.  P  Div.  224  ;  3  C.  P.  Div.  32  ;  Nickerson  v.  Darrow,  5  Allen,  419,  422  ; 
Navulshaw  v.  Brownrigg,  2  De  Gex,  M.  &  G.  (Am.  ed.)  441,  445,  and 
notes  ;  Kaltenbach  v.  Lewis,  Law  R.  24  Ch.  D.  54. 

6  Consol.  Stats.  Can    ch.  54  (1859);  In  re  Coleman,  36  Up.  Can. 
Q.  B.  559;  Todd  ?;.  Liverpool  etc.  Ins.  Co.  20  Up.  Can.  C.   P    523; 
Cockburn  v.  Sylvester,  27  Up.  Can  C.  P  34  •  reversed  in  1  Ont.  App. 

7  See  2  Kent.  Com.  628,  n   b  ;  Smith  Merc.  Law  (Am.  ed.)  12fi,  n. ; 
Jones' Pledges,  333,353,  stating  State  statutes;  Bennett's  Benjamin, 
and  1  Corbin's  Benjamin,  ?  19  ;  Story  on  Sales,  §  104  ;  2  Sohouler  on 
Personal  Property,  §  556,  note  on  p.  568  ,  Warner  v.  Martin,  11  How. 

8  N.  Y.  Rev.  Stats.  76  ;  Jennings  v.  Merrill,  20  Wend.  9. 

9  Mass.  Rev.  Stats.  1882,  417 ;  Ullmann  v.  Barnard,  7  Gray,  554  ; 
Mich.  State  Bank  v.  Gardner,  15  Gray,  362  ;  De  Wolf  v.  Gardner,  12 
Cush   19. 

10  Bott  v.  McCoy,  20  Ala.  578. 

11  Cai,  Civ.  Code,  §  2369  ;  Wisp  v.  Hazard,  66  Cai.  459.    And  see 
Green  ?;.  Campbell,  52  Cai.  586,  589. 

12  See  Me.  Rev.  Stats.  326. 

13  Ohio  Rev.  Stats.  1880,  §  3216,  etc. 

14  Brightley'sPurdon's  Digest,  664. 

15  See  "  Conversion  by  Purchase,"  15  Am.  Law  Rev.  374  ;  Md.  Rev, 
Code,  291. 

NEWMARK  SALES. —  26. 


$  208  FACTORS'  ACTS,  302 

16  Compare  Dodge  v.  Meyer,  61  Cal.  405. 

17  Compare  Chicago  etc.  Co.  v.  Lowell,  60  Cal.  454. 

18  See  proviso  later  in  paragraph. 

19  Compare  Dodge  v.  Meyer,  61  Cal.  405. 

20  See  next  chapter  on  DOCUMKNTS  of  TITLE  ;  "  Conversion  by 
Purchase,"  15  Am.  Law  llev.  363,  374. 

21  As  to  extent  of  these,  see  Xavulshaw  v.  Brownrigg,  2  De  Gex, 
M.  &  G.  441 ;  21  Law  J  Ch.  57 ;  Portalis  v.  Tetty,  Law  R  5  Eq.  140. 

22  Heyman  v.  Flewkes.  13  Com.  B.  IS".  S.  519  :  Jpwan  v.  Whit- 
worth,  Law  R.  2  Eq.  6<)2  ;  Macnee  r.  Gorst,  Law  R.  4  Eq.  315  ;  Portalis 
?'.  Tetty,  Law  R.  5  Eq.  140  ;  Vickers  r.  Hertz,  Law  R.  2  H.  L.  S.  113. 
See  Campbell  on  Sales,  412,  main  basis  of  discussion  of  proviso. 

23  See  Story  on  Agency,  §  113,  n.  ;  Higgons  v.  Burton,  23  Law  J. 
Ex.  342. 

24  See  Nixon  r.  Brown,  57  N.  H.  34  ;  Western  Union  R.  R.  Co.  v. 
Wagner,  65  111.  197. 

25  Higgons  v.  Burton,  23  Law  J.  Ex.  32. 

26  See  "  Conversion    by  Purchase,"  15  Am.  Law  Rev.  363,  474 ; 
Davis  v.  Russell,  52  Cal.  611,  616. 

$  208,  Occupations  covered. —  Wliarfmger,  luarehouse- 
man,  etc.  The  English  factors'  acts,  which  were  de- 
signed to  overcome  the  effect  of  previous  rulings,1  have 
been  held  not  to  apply  to  a  wharfinger,  who  usually 
receives  goods  without  power  to  sell;2  nor  to  a  ware- 
houseman, although  he  was  also  in  the  habit  of  acting 
as  a  wool-broker,3  although  they  have  been  held  to 
cover  the  case  of  a  picture-dealer,  whose  ordinary  busi- 
ness was  not  that  of  selling  pictures.* 

Transactions  not  mercantile.  Nor  have  they  been 
regarded  as  extending  to  transactions  which  are  not  of 
a  mercantile  character,5  as  sales  of  furniture  or  goods  in 
possession  of  a  tenant,  or  of  a  bailee  for  hire,6  so  that  a 
purchaser  in  good  faith  from  such  vendors  would  be 
liable  in  trover  to  the  true  owner.7 

Factor  "perching"  goods.  But  a  factor  or  commis- 
sion merchant  to  whom  goods  are  sent  to  be  "  perched," 
or  stretched  on  poles  for  examination  by  a  pretended 
purchaser,  may  be  deemed  an  agent  within  the  English 
acts.8 


303  FACTORS*   ACTS.  \   209 

1  See  Fletcher  7'.  Heath,  7  Barn.  &  C.  517  ;  Phillips  v.  Heath,  6 
Mees.  &  W   572;  llatfteld  v.  Phillips,  9  Mees.  &  W.  0-47  •  Kvans  •>•. 
Trueman.  1  Moody  tfc  R    10;    Benzi   v    Stewart,  4  Man.  &  G.  2s5; 
Taylor  ?>  Rymer.  3  Barn.  &  Adol.  320.    Cases  collected  and  stated: 
Campbell  on  Sales-  413. 

2  Mark  v  "Whittenbury,  2  Barn.  &  Adol.  484. 

3  Cole  v  North  Western  Bank,  9  C.  P  470 ;  10  C.  P.  354.    Case  con- 
sidered •   Campbell  on  Sales,  415. 

4  Hayman  v.  Flewker,  13  Com.  B.  N.  S.  519.    Case  noted:  Ben- 
nett's Benjamin  on  Sales,  p.  24,  \  20. 

5  Wood  v  Rowcliffe,  6  Hare,  183.    And  see  Baines  v.  Swainson,  4 
Best  <fe  Smith,  270. 

6  Loesohman  v.  Machin,  2  Stark.  311 ;  Cooper  v.  Willomat,  1  Com. 
B  G70.    See  Bennett's  Benjamin  on  Sales,  p.  22,  §  19. 

7  Soe  cases  last  cited;  also  \  184,  on  UNAUTHORIZED  SALES  BY 
BAILKXS. 

8  Raines  r.  Swainson,  4  Best  &  Smith,  270.    At  least  if  the  jury 
should  so  hoi  1,  and  should  decide  that  his  sale  to  another  party  took 
pla^e  in  the  ordinary  course  of  business:  Baines  v.  Swainson,  4  first 
<fe  Smith,  270.    Case  stated  :  Bennett's  Benjamin  on  Sales,  pp.  24, 
25,  \  20. 

§  209.  Intrusting  goods  or  documents. —  Vendee  as 
agent,  etc.  The  terms  "  agent  intrusted  with  goods  or 
documents  of  title"  were  held,  prior  to  the  latest  Eng- 
lish factors'  acts,  not  to  include  a  vendee  thus  in- 
trusted, because  he  holds  in  his  own  right.1  But  a 
vendee  is  embraced  by  the  last  amendatory  enactment,2 
which  greatly  extends  the  circumstances  under  Avhich 
reliance  may  be  placed,  upon  the  ostensible  control  of 
property  as  implying  a  title  to  sell.3 

Revocation  of  factor's  authority.  So  prior  to  the 
most  recent  act,  it  was  held  that  a  factor  is  not 
44  intrusted  with  the  goods,"  after  his  authority  has 
been  revoked,  and  he  has  been  ordered  to  deliver  the 
property  to  another  factor  for  account  of  the  foreign 
consignor,4  although  he  had  disobeyed  the  order,  and 
remained  in  possession  of  the  wine  in  controversy.5 
But  the  amendatory  statute  renders  a  secret  revocation 
of  the  intrustment  or  agency  ineffectual  against  tho.--e 
making  purchases  or  advances  without  notice  of  the 


§  209  FACTORS'  ACTS.  304 

Conflicting  sales  by  owner  and  commission  merchant. 
And  in  this  country  it  has  been  ruled  that  a  commis- 
sion merchant  passes  a  good  title,  and  is  not  liable  in 
trover  to  the  owner  for  making  a  sale  and  delivery  of 
property  after  the  owner  had  sold  but  not  delivered  the 
same  property,7  but  before  notice  of  such  transaction 
or  of  any  revocation  of  his  authority.8 

Vendor  holding  documents  of  title.  So  before  the  lat- 
est legislation  in  England  covering  the  case  of  vendors 
permitted  to  retain  documents  of  title  to  goods,9  a  to- 
bacco broker  and  importer  in  whose  name  a  quantity 
of  that  article  was  allowed  to  remain  by  a  vendee  on  the 
dock-books,  and  who  by  means  of  the  warrants  he  re- 
ceived pledged  the  property  to  another,10  was  held  not 
to  be  intrusted  with  the  warrants  within  the  existing 
enactments.11 

Fraudulent  procurement  of  document  of  title.  But  the 
mere  fact  that  the  document  of  title  came  into  the  fac- 
tor's hands  in  consequence  of  his  false  and  fraudulent 
representations  to  the  owner,  has  been  regarded  as  not 
affecting  the  transferee,  if  it  appears  that  the  owner 
really  intrusted  the  factor  or  his  representative  with  the 
document,12  though  if  a  person  gets  possession  of  such 
a  document  by  fraud  without  having  been  intrusted 
with  it  at  all,  he  has  no  title  to  convey.13 

1  Jenkyns  v.  Usbornc.  7  Man.  &  G.  678  ;  Van  Casteel  ?'.  Booker,  2 
Ex.  691.    And  see  Fuentes  r.  Montis,  Law  R.  3  Com.  P  2B8  ;  Law  R.  4 
Com.  P.  93  ;  Bennett's  Benjamin  on  Sales,  p.  22,  g  19  ;  and  p.  S35,  \  818. 
(Sources  of  paragraph), 

2  Act  of  1877,  40,  41  Viet.  ch.  39. 

3  Campbell  on  Sales,  55.    So  as  to  embrace  almost  every  situa- 
tion In  which  any  person  in  the  ordinary  course  of  mercantile  busi- 
ness is  likely  to  have  such  control  placed  or  left  in  his  hands : 


Campbell  on  Sales,  55. 

4  Fuentes  v.  Montis,  Law  R.  3  Com.  P.  268  ;  Law  R.  4  Com.  P.  93. 

5  Fuentes  v.  Montis,  Law  R.  3  Com    P.  268  ;  Law  R.  4  Com.  P.  93. 
Case  stated  and  quoted  :  Bennett's  Benjamin  on  Sales,  p.  25,  \  20 ; 
and  pp.  936-938,  g  820. 

6  40, 41  Viet.  Ch.  39,  \  2  (1877), 


305  FACTORS'  ACTS.  §  210 

7  Jones  v.  Hodgkins,  61  Me.  480. 

8  Jones  v.  Hodgkins,  61  Me.  480;  Bennett's  Benjamin  on  Sales. 
p.  24,  \  20,  n.  y.    But  see  Bonn  v.  Cleaver,  25  La.  An.  421. 

9  40,  41  Viet.  ch.  39,  §  3  (1877.) 

10  Johnson  v.  Credit  Lyonnais,  Law  R.  3  C.  P.  D.  32. 

11  Johnson  v.  Credit  Lyonnais,  Law  B,.  3  C.  P.  I).  32.    Nor  was  his 
vendee  deemed  debarred  from  setting  up  title  against  the  pledgees  : 
Johnson  v.  Credit  Lyonnais,  Law  K.  3  C.  P.  D.  32.    Case  stated : 
Campbell  on  Sales,  4i(j,  417. 

12  Sheppard  v.  Union  Bank  of  London,  7  Hurl.  &  N.  661 ;  Bailies 
v.  Swalnson,  4  Best  &  Smith,  270. 

13  Kingsford  v.  Merry,  11  Ex.  577  ;  1  Hurl.  &  N.  503  ;  Higgins  v. 
Burton,  26  Law  J.  Ex.  1542.    See  Bennett's  Benjamin  on  Sales,  p.  22, 
\  19,  and  p.  935,  \  819,  so  stating  these  cases. 

I  210.  Apparent  ownership  or  authority.  —  Bare  pos- 
session insufficient.  Independently  of  the  provisions  of 
the  statute  in  regard  to  dealings  with  agents  and  factors, 
the  bare  possession  of  goods  by  one,  though  he  may 
happen  to  be  a  dealer  in  that  class  of  goods,  does  not 
clothe  him  with  power  to  dispose  of  the  goods  as  though 
he  were  owner,  or  as  having  authority  as  agent  to  sell 
or  pledge  the  goods  to  the  preclusion  of  the  right  of  the 
real  owner.1  If  he  sells  as  owner,  there  must  be  some 
other  indicia  of  property  than  mere  possession.2  There 
must  be  some  act  or  conduct  on  the  part  of  the  real 
owner,3  whereby  the  party  selling  is  clothed  with  the 
apparent  ownership  or  authority  to  sell,  and  which  the 
real  owner  will  not  be  heard  to  deny  or  question  to 
the  prejudice  of  an  innocent  third  party,4  dealing  on  the 
faith  of  such  appearances.5 

Right  to  sell,  etc.  But  where  one  of  a  firm  of  dealers 
in  musical  instruments,  to  whom  the  owners  of  a  piano 
intrusted  it  for  sale  on  commission,  took  the  piano 
home,  and  after  several  months  sold  it,  making  no  re- 
turns, it  was  held  that  the  buyer  being  a  purchaser  in 
good  faith  and  for  value,  took  a  good  title  from  the 
agent,  who  was  clothed  not  only  with  the  possession  of 
the  piano,  but  also  with  the  right  to  sell  it,  and  had  been 
allowed  by  the  principals  to  treat  it  as  his  own  property.6 


§  210  FACTORS'  ACTS.  306 

Ostensible  authority  and  real  power.  And  a  factor  who 
has  the  possession  and  control  of  personal  property  has, 
under  the  California  statute,  ostensible  authority,  and 
therefore  real  power,  to  pledge  the  same  as  collateral 
security  for  a  loan  made  to  him  ~by  the  pledgee,  in  good 
faith,  in  the  ordinary  course  of  business,  and  without 
notice  of  the  principal's  title.7 

1  Levi  v.  Booth,  58  Md.  305,  314  ;  42  Am.  Rep.  332,  337 ;  fully  dis- 
cussing transfer  of  title  by  agents  under  and  without  factors'  acts. 

2  Levi  v.  Booth,  58  Md.  305,  315  ;  42  Am.  Rep.  332,  337.    And  see 
Covill  r.  Hill,  4  Denio,  323  ,  as  quoted,  Barstow  v.  Savage  Mining  Co. 
P.4  t'ul.  388 ;  49  Am.  Rep.  705. 

3  See  Pickering  v.  Busk,  15  East,  38  ;  Johnson  v.  The  Credit  Lyon- 
nais,  2  C.  P.  Div.  224  ;  3  C.  P.  Div.  32. 

4  See  McNeil  v.  Tenth  Nat.  Bank,  46  N.  Y.  325 ;  as  quoted,  Bar- 
stow  v.  Savage  Mining  Co.  64  Cal.  388  ;  49  Am.  Rep.  705. 

5  Levi  v.  Booth,  58  Md.  305,  315  ;  42  Am.  Rep.  332,  3:7. 

6  Bias  v.  Chickering,  64  Md.  348  ;  S.  C.  21  The  Reporter,  378  ;  citing, 
Hull  r.  Hinks,  21  Md.  406 ;  Levi  v.  Booth,  53  Md.  311,  312 ;  42  Am.  Rep. 
332  ;  Wharton  on  Agency,  \\  101,  200. 

7  Wisp  v.  Hazard,  66  Cal.  459. 


307  DOCUMENTS  OF  TITLE.  2   211 


CHAPTER  XVI. 

DOCUMENTS   OF   TITLE. 

2  211.  Signification. 

|  212.  Bills  of  lading. 

g  213.  Nature  and  effect. 

?  214.  Shipping  receipts. 

§  215.  Estoppel  of  ship-owners. 

§  216.  Warehouse  receipts. 

§  217.  Documents  of  title. 

§  218.  Statutory  scope  of  terra. 

§  219.  Delivery  orders. 

§  220.  Dock  warrants,  etc. 

\  211.  Signification,  —  Instruments  of  authentication. 
The  convenient  expression  "  documents  of  title,"  used 
in  legislation  relating  to  factors  and  their  disposition 
of  goods,  may  be  used  to  cover  all  those  different  in- 
struments which  authenticate  the  transfer  of  title  or  of 
possession,  as  bills  of  lading,  warehouse  receipts,  and 
various  instruments  in  the  nature  of  delivery  orders.1 

Objection  to  expression.  Objection  has,  however,  been 
made  to  the  expression,  upon  the  ground  that  title  to 
goods  consists  in  facts,  and  contracts  having  the  force 
of  conveyances,  while  the  documents  which  give  war- 
rant to  demand  the  goods  from  the  custodians,  whether 
shipmasters,  wharfingers,  or  warehousemen,  are  not, 
generally  speaking,  part  of  the  title,  although  they  are 
commonly  accessories  to  the  title.2 

When  may  constitute  title.  But  it  is  admitted  that  in 
certain  cases  they,  along  with  other  facts,  constitute  a 
title  in  the  holder;  and  these  cases  sure,  firstly,  when 
they  are  relied  on  under  the  principle  of  holding  out  ;3 
secondly,  under  the  same  principle  as  extended  by  the 
factors'  acts ;  *  and  thirdly,  by  custom  of  trade,  such  as 


§212  DOCUMENTS  OF  TITLE.  308 

that  which  enables  the  bonafide  holder  of  bills  of  lading 
to  defeat  the  vendor's  right  to  stop  in  transitu.* 

1  See  2  Schouler  on  Personal  Property,  \\  302,  539, 556,  notes.    And 
consult  \\  217  and  218  of  this  chapter  on  DOCUMENTS  OF  TITLE  and 
STATUTORY  SCOPE  or  TERM. 

2  Campbell  on  Sales,  414,  n.  1. 

3  As  in  Pickering  v.  Busk,  15  East,  28. 

4  See  preceding  chapter  on  FACTORS'  ACTS. 

5  Campbell  on  Sales,  414,  n.  1.    Stoppage  in  transitu:  See  subse- 
quent chapter  on  that  subject. 

\  212.  Bills  of  lading. — For  symbolical  delivery  of 
goods.  Symbolical  transfers  of  chattels  not  conven- 
iently situated  for  manual  delivery  are  effected  by  such 
acts  under  the  law-merchant  as  the  delivery  of  the  bill 
of  lading  properly  indorsed  or  assigned,  or  of  an  invoice 
as  its  substitute.1 

Seller' ]s  lien  and  documents  of  title.  And  as  the  seller's 
lien  is  dependent  upon  possession,  it  is  extinguished  by 
delivery  of  the  goods  to  the  buyer,2  whether  actual  or 
constructive.3  But  all  documents  accompanying  title 
have  not  this  full  effect  so  as  to  divest  the  seller's  lien.4 

Stoppage  in  transitu.  Nor  will  even  the  indorsement 
or  assignment  of  a  bill  of  lading  deprive  the  owner  of 
the  right  of  stoppage  in  transitu  where  the  rights  of 
third  parties  have  not  intervened.5 

Unindorsed  or  unassigned  bill  of  lading.  And  the  de- 
livery of  such  a  document  as  an  unindorsed  or  unas- 
signed  bill  of  lading  will  not  be  equivalent  in  its  effect 
to  delivery  of  the  goods.6 

Retranxfer  to  consignor.  Where  a  bill  of  lading  mak- 
ing the  goods  deliverable  "  to  order  or  assigns,"  is  trans- 
ferred by  the  consignor  and  deposited  as  security  for 
advances  made  by  a  third  party,  and  then  upon  repay- 
ment of  the  advance,  is  transferred  back  to  him  by  the 
third  party,  his  original  remedies  under  the  contract 
are  restored,7  so  as  to  enable  him  to  sue  for  a  breach 
committed  before  or  after  such  retransfer  of  the  bill.8 


309  DOCUMENTS   OF  TITfcE.  £    212 

In  duplicate  or  triplicate.  Where  bills  of  lading  are 
given  in  duplicate  or  triplicate,  according  to  a  custom 
largely  prevalent  among  mexfchqjpts,  it  has  been  held 
that  the  party  who  first  gets  one  bill  of  lading  out  of 
the  set,  gets  the  property  which  that  set  represents,  and 
need  not  trouble  himself  about  the  subsequent  bills  of 
the  set;9  and  that  while  a  ship-owner  or  wharfinger 
who  delivers  the  goods  to  the  holder  of  a  subsequent 
bill  may  be  excusable,  the  fact  of  such  delivery  will  not 
affect  the  ownership  of  the  goods  as  between  the  holders 
of  the  two  bills.10 

Reservation  of  jus  disponendi.  The  seller  may  restrain 
the  effect  of  delivery  by  reserving  the  jus  disponendi,11 
as  by  making  but  the  bill  of  lading  to  himself  or  order.12 
And  a  consignor  who  has  reserved  the  jus  disponendi 
may  effectuate  a  sale  or  pledge  of  the  property  con- 
signed, by  delivery  of  the  bill  of  lading  to  the  pur- 
chaser or  pledgee,  as  completely  as  if  the  property 
were  in  fact  delivered.13 

Revocation  of  consignment.  A  shipper  may  revoke  a 
consignment  after  shipment  made,  and  bill  of  lading 
signed,  but  before  the  bill  of  lading  is  delivered  to  the 
consignee.14 

1  Lickbarrow  v.  Mason,  2  Term  Rep.  63 ;  1  Smith's  Leading  Cases, 
848  ;  McEwan  v.  Smith,  2  H.  L.  Cas.  309;  McKee  v.  Garcelon,  60  Me. 
165;  Gardner  v.  Rowland,  2  Pick.  509,  602;  Dows  v.  Greene,  "24  N.  Y. 
638  ;  Becker  v.  Hallgarten,  86  N.  Y.  167 ;  Conard  v.  Atl.  Ins.  Co.  1 
Peters,  386;  Gibson  v.  Stevens,  8  How.  399;  The  Vaughan,  14  Wall. 
258.    See  for  basis  or  support  of  foregoing  matter,  1  Schouler  on  Per- 
sonal Property,  §§471,472;  2  Schouler  on  Personal  Property,  gs^; 
Bennett's  Benjamin  on  Sales,  pp.  811,  812,  \  697 ;  Story  on  Sales, 
pp.  391,  392,  0  343. 

2  Parks  v.  Hall,  2  Pick.  206,  212. 

3  Parks  v.  Hall,  2  Pick.  206,  212. 

4  2  Schouler  on  Personal  Property,  \  556,  whence  next  two  para- 
graphs also  derived. 

5  See  Lickbarrow  v.  Mason,  2  Term  Hep.  63;  1  Smith's  Leading 
Cases,  848  ;  Peters  v.  Ballistier,  3  Pick.  495. 

6  Stone  v.  Swift,  4  Pick.  389. 

7  Short  v,  Simpson,  Law  B.  1  Com.  P.  248. 


\   213  DOCUMENTS  OF  TITLE.  310 

8    Short  r.  Simpson,  Law  R.  1  Com.  P.  248  ;  2  Schouler  on  Personal 
Property,  569,  g  556,  n. 

0    Meyerstein  v.  Barber,  Law  R.  4  H.  L.  317  ;  Skillings  v.  Bollman, 
6  Mo.  App.  76. 

10  Meyerstein  v.  Barber,  Law  R.  4  H.  L.  317.    And  see  Glyn  v.  East 
India  Dock  Co.  7  App.  Cas.  15'J:  35  Eng.  Rep.  414;  and  basis  or  sup- 
port of  foregoing  matter  in  2  Schouler  on  Personal  Property,  p.  569, 
\  ,>">'),  n.  ;  Bennett's  Benjamin  on  Sales,  pp.  939-941,  \  822,  and  pp.  9M, 
901,  2  861 ;  2  Corbin'a  Benjamin  on  Sales,  p.  105:',,  \  1224.     Where  the  bill 
of  lading  delivered  to  the  consignor  differs  from  that  kept  by  the 
master  of  the  vessel,  the  former  controls  :  Ontario  Bank  ?>.  Hanlon, 
23  Hun,  283  ;  The  Thames,  14  Wall.  98, 105.    Duplicate  bills  and  stop- 
page in  transitu :  Castanda  v.  Mo.  Pac.  Ry.  Co.  24  Fed.  Rep.  267. 

11  See  2  Schouler  on  Personal  Property,  \\  271-275,  and  p.  569,  £  556  ; 
Craven  v.  Ryder,  4  Taunt.  433;  Cowasjee  v.  Thompson,  5  Moore 
P.  C.  C.  165  ;  Dodge  v.  Meyer,  61  Cal.  405,  417. 

12  See  2  Schouler  on  Personal  Property,  \  273. 

13  Emery's  Sons  v.  Irving  Xat.  Bank.  2~>  Ohio  St.  366.    See  Dodge  v. 
Meyer,  61  Cal.  405,  417.    And  the  consignor  who  retains  the  bill  of 
lading  may  order  delivery  to  some  person  other  than  the  consignee  : 
Halsey  v.  Warden,  25  Kan.  128,  136. 

14  West.  Transp.  Co.  r.  Hawley,  1  Daly,  327.    And  until  then  no 
title  or  right  to  possession  or  ownership  passes  from  the  owner  or 
shipper  :  West.  Transp.  Co.  v.  Hawley,  1  Daly,  327. 


§  213.  Nature  and  effect.  —  Represent  property.  Bills 
of  lading  by  the  law  merchant  are  the  representatives 
of  the  property  for  which  they  have  been  given.1 

Effect  of  transfer.  And  the  indorsement  and  delivery 
of  a  bill  of  lading  transfers  the  property2  from  the 
vendor  to  the  vendee;3  is  a  complete  legal  delivery  of 
the  goods  ;4  divests  the  vendor's  lien  ;5  and  though  the 
contract  is  not  at  common  law  transferred  to  the  as- 
signee,6 yet  by  statute  in  England,7  it  vests  in  the 
vendee  all  the  vendor's  rights  of  action  against  the 
ship-master,  or  owner.8 

Stoppage  in  transitu.  But  though  the  vendor's  lien 
is  thus  divested  by  reason  of  the  complete  delivery  of 
the  indicia  of  title,9  yet  the  seller  may,  if  the  goods 
have  not  yet  reached  the  actual  possession  of  the 
buyer,10  and  if  no  third  person  has  obtained  rights  by 
obtaining  a  transfer  of  the  bill  of  lading  from  the 
buyer,11  intercept  the  goods,12  in  the  event  of  the  buyer's 


311  DOCUMENTS  OF  TITLE.  §   214 

insolvency  before  payment,13  by  the  exercise  of  the 
right14  of  stoppage  in  transitu^ 

1  Bennett's  Benjamin  on  Sales,  p.  928,  g  813.    And  see  Dodge  v. 
Meyer,  61  Cal.  405,  416.    Even  after  goods  are  landed,  until  replaced 
by  wharfinger's  warrants  :  Myerstein  v.  Barber,  Law  R.  4  App.  Cas. 
317  ;  Law  It.  2  Com.  P.  308,  361. 

2  Though  such  indorsement  is  not  essential  to  the  transfer  of 
title  :  See  First  Nat.  Bank  v.  Northern  Railroad,  53  N.  H.  203  ;  City 
Bank  v.  Borne  etc.  B.  R.  Co.  44  N.  Y.  136  ;  Merch.  Bank  v.  Union 
B.  R.  etc.  Co.  69  N.  Y.  373  ;  Holmes  v.  German  Security  Bank,  87  Pa. 
St.  525  ;  Holmes  v.  Bailey,  97  Pa.  St.  57  ;  Emery's  Sons  v.  Irving  Nat. 
Bank,  25  Ohio  St.  360,  366.    Sometimes  otherwise  under  commercial 
code  of  German  Empire  :  See  Becker  v.  Halgarten,  86  N.  Y.167. 

3  See  McKee  v.  Garcelon,  60  Me.  167  ;  Bobinson  v.  Stuart.  68  Me. 
61  ;  Davis  v.  Bradley,  24  Vt.  55;  Same  v.  Same,  28  Vt.  118  ;  Til  den  v. 
Minor,  45  Vt.  V,;6  ;  Joslyn  v.  Grand  Trunk  B.  B.  Co.  51  Vt.  921  ;  Peters 
v.  Ballisticr,  3  Pick.  41)5  ;  Stone  v.  Swift,  4 


.     .       .  . 

ift,  4  Pick.  389  ;  Hazard  v.  Fiske, 

3  .  .  267  ;  tens  v.  Waas  y.  o.  9  111.  App.  48  ;  Royal  Can.  Bank 
v.  Grand  Trunk  By.  Co.  23  Up.  Can.  C.  P.  225;  Glyn  v.  East  India 
Dock  Co.  5  Q.  B.  D.  129  ;  28  Week.  R.  444  ;  35  Eng.  Bep.  414.  See,  also, 
Dodge  v.  Meyer,  61  Cal.  405,  416.  Transfer  of  title  by  bill  of  lading: 
St.  Paul  Boiler  Mill  Co.  v.  Great  Western  Dispatch  Co.  27  Fed.  Bep. 
434  ;  under  Louisiana  Code,  see  Allen  v.  Jones^  24  Fep.  Bep.  11. 

4  See  under  chapter  on  DELIVERY. 

5  See  preceding  section  on  BILLS  OF  LADING. 

6  See  Stone  v.  Swift,  4  Pick.  389. 

7  See  Bills  of  Lading  Act,  18,  19  Viet.  ch.  3  ;  The  Freedom,  Law. 
R.  3  P.  C.  594. 

8  Bennett's  Benjamin  on  Sales,  p.  928,  g  812,  and  pp.  928,  929,  \  813, 
whence  foregoing  matter  derived.    Effect  of  indorsement  of  bills  of 
lading  in  Canada  to  banks  :  Goodenough  v.  City  Bank,  10  Up.  Can. 
C.  P.  51.    Negotiability  in  Louisiana:  Henry  v.  Phila.  Warehouse  Co. 
81  Pa.  St.  76. 

9  See  preceding  section  on  BILLS  OF  LADING. 

10  See  under  chapter  on  STOPPAGE  IN  TRANSITU. 

11  See   section   under  STOPPAGE  IN    TRANSITU,   on   MODE   OF 
DEFEATING  RIGHT. 

12  See  section    under  STOPPAGE  IN    TRANSITU,   on    MODE  OF 
EXERCISING  RIGHT. 

13  See  section  on  BUYER'S  INSOLVENCY,  etc.,  under  STOPPAGE 
IN  TRANSITU. 

14  Bennett's  Benjamin  on  Sales,  p.  929,  g  813  ;  citing,  Lickbarrow  v. 
Muson,  2  Term  Rep.  62  ;  1  Black.  H.  357  ;  6  East,  20  ;  1  Smith's  Leading 
Cases  (ed.  1879),  753. 

15  Nature  of  right  :  See  first  section  of  chapter  on  STOPPAGE  IN 
TRANSITU.     Duplicate   bills  of   lading  and   stoppage   in   transitu: 
Castanola  v.  Mo.  Pac.  By.  Co.  24  Fed.  Rep.  297. 

\  214.  Shipping  receipts,  —  Prerequisite  to  vesting  of 
title  in  consignee.  The  rule  seems  to  be  that  in  order  to 
change  the  title  to  property  shipped,  and  vest  it  in  the 


I   215  DOCUMENTS  OF  TITLE.  312 

consignee,  there  must  be  a  bill  of  lading,  receipt,  or 
letter  of  information  forwarded  to  the  consignee,  or 
advances  must  have  been  made  on  the  faith  of  the 
particular  consignment.1 

Forwarded  too  late,  etc.  But  there  is  no  transfer  of 
title,  risk,  or  possession  where  the  shipping  receipts 
for  grain  were  not  forwarded  until  after  the  grain  was 
attached  as  the  property  of  the  consignor,  and  the  ad- 
vancements for  which  a  lien  was  claimed  by  the  con- 
signees were  all  made  before  the  grain  in  controversy 
was  shipped.2 

1  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325  ;  51  Am.  Rep.  51, 58. 

2  Hodges  v.  Kimball,  49  Iowa,  577  :  following,  Elliott  v.  Bradley, 
23  Vt.  217 ;  citing  in  support,  Bank  of  Rochester  v.  Jones,  4  N.  Y.  497  ; 
Winter  v.  Coit,  7  N.  Y.  288;  Kinloch  v.  Craig,  3  Term  Rep.  119; 


Wight,  24  Wend.  169 ;  Grosvenor  v.  Phillips.  2  Hill,  147 ;  Bailey  v. 
Hudson  River  R.  Co.  49  N.  Y.  70  ;  Haille  r.  Smith,  1  Bos.  &  P.  563  ; 
Krulder  v.  Elson,  47  N.  Y.  36  ;  distinguishing,  Anderson  r.  Clark.  2 
Bing.  20 ;  Cuming  v.  Brown,  9  East,  506;  Vertue  v.  Jewell,  4  Camp. 
31 ;  Patten  v.  Thompson,  5  Maule  <fc  S.  350  ;  Wade  v.  Hamilton,  30  Ga. 
450;  Grove  ?>.  Brien,  8  How.  429;  Bryans  r.  Nix,  4  Mees.  &  W.  774; 
Evans  v.  Nichol,  3  Man.  &  G.  614  ;  Alderson  v.  Temple,  4  Burr.  2235  ; 
Berly  v.  Taylor,  5  Hill,  577. 

\  215.  Estoppel  of  ship-owners.  —  English  rule.  It  is 
beyond  the  scope  of  the  master's  authority  to  sign  a 
bill  of  lading  for  goods  which  have  never  been  shipped  ; l 
and  in  England,  the  ship-owner  can  set  up  such  want 
of  authority,2  even  as  against  one  who  has  made  ad- 
vances on  the  faith  of  the  bill,3  except  so  far  as  this 
right  may  be  affected  by  statutory  regulation.4 

Like  American  view.  The  English  rule  is  followed5 
in  Canada,6  in  the  federal  courts,7  in  Massachusetts,8 
and  in  Missouri.9 

Different  American  doctrine.  But  the  counter-view, 
that  as  against  innocent  third  persons,  the  ship-owners 
are  estopped  to  deny  the  bill  of  lading  upon  this  point, 
is  maintained  in  New  York,10  and  in  Illinois.11 


5   UJtUlllOUUUU  It-i  J-^evv      iVJJLJt^.,    -  dlJU.   ill   XXHAIV 

1  Bennett's  Benjamin  on  Sales,  p.  930,  §  813,  n./. 

2  According  to  source  just  cited. 


,„ 


DOCUMENTS   OF  TITLE.  \   216 


3  Grant  v.  Norway,  10  Com.  B.  665 ;  Coleman  v.  Riches,  16  Com. 
B.  104  ;  Hubbersty  v.  Ward,  8  Ex.  330. 

4  Bills  of  Lading  Act,  18, 19  Viet.  ch.  3,  §  3 ;  Jessel  v.  Bath,  Law  B. 
2  Ex.  267  ;  Brown  v.  Powell  etc.  Coal  Co.  Law  R.  10  Com.  P.  5G2. 

5  According  to  Bennett's  Benjamin  on  Sales,  p.  930,  §  813,  n.  /. 

6  Eel  v.  Great  West.  By.  Co.  5  Duval,  179. 

7  The  Lorn,  7  Blatchf.  244 ;  Hickox  v.  Buckingham,  18  How.  182. 

8  Sears  v.  Wingate,  8  Allen,  103  ;  Walter  v.  Brewer,  11  Mass.  99. 

9  Louisiana  Nat.  Bank  v.  Laveille,  52  Mo.  380.    Inclination  toward 
same  view  :  Lehman  v.  Central  B.  R.  Co.  26  Alb.  L.  J.  389. 

10  Meyer  v.  Peck,  28  N.  Y.  590  ;  Armour  v.  Mich.  Cent.  R.  R.  Co.  65 
N.  Y.  Ill ;  Miller  v.  Hannibal  etc.  R.  R.  Co.  90  N.  Y.  430 ;  24  Hun,  607. 

11  St.  Louis  R.  R.  Co.  v.  Lamed,  103  111.  293.    See  Bennett's  Benja- 
min on  Sales,  p.  930,  \  813,  n.  /,  for  basis  of  this  statement. 

§  216.  Warehouse  receipts,  —  In  England.  In  many 
cases  in  the  English  courts  it  has  been  held  that  an  as- 
signment of  a  document  of  the  character  of  a  warehouse 
receipt,  does  not  amount  to  a  constructive  delivery  of 
the  goods  until  the  warehouseman  is  notified  thereof, 
and  agrees  to  hold  the  goods  for  the  assignee.1 

Effect  of  local  usages.  But  local  mercantile  usage,  so 
well  recognized  as  to  have  presumably  entered  into  the 
mutual  agreement  of  parties,  has  a  material  bearing 
on  the  effect  to  be  given  to  instruments  accompanying 
the  transfer  of  goods.2 

As  documents  of  title.  And  in  the  United  States,  ware- 
house receipts  have  in  several  instances,  especially  in 
sections  largely  concerned  in  inland  transportation, 
been  treated  as  documents  of  title  to  much  the  same  ex- 
tent as  bills  of  lading.3 

Statutory  regulation.  So  local  statutes  sometimes 
specially  provide4  that  any  person  to  whom  warehouse 
receipts  are  transferred  by  indorsement  shall  be  deemed 
the  owner,  so  far  as  to  give  validity  to  any  pledge,  lien, 
or  transfer  by  him.5 

Negotiability.  Warehouse  receipts  are  sometimes 
made  negotiable  by  statute;6  but  usually  a  receipt  of 
this  character  is  not,  in  any  technical  sense,  negotiable,7 
NEWMARK  SALES.  — 27. 


\  216  DOCUMENTS  OF  TITLE.  314 

and  the  delivery  of  the  receipt,  apart  from  any  statute 
regulating  the  transfer,  would  have  the  same  effect  in 
transferring  the  title  to  the  property,  as  the  delivery  of 
the  property  itself.8  Thus,  it  is  laid  down  that  in  the 
absence  of  statutory  enactment  a  warehouse  receipt  is 
not  a  negotiable  instrument,  and  an  assignment  thereof 
operates  merely  as  a  transfer  of  the  property  deposited, 
and  passes  no  better  title  to  the  purchaser  than  the 
vendor  had.9 

Bonaflde  purchaser  of  bonded  goods.  Where  brandy 
manufactured  by  the  owner  for  a  licensed  distiller  is 
stored  in  a  United  States  bonded  warehouse,  in  order  to 
delay  the  payment  of  the  revenue  tax,  and  the  laws 
governing  the  matter  require  brandy  to  be  stored  in  a 
distiller's  name,  but  do  not  require  the  distiller  to  be 
the  owner,  then  if  the  warehouse  receipt  was  issued  to 
the  distiller,  and  he  subsequently  sold  the  liquor  to 
another,  without  authority,  the  latter,  though  a  bona 
fide  purchaser  for  value  and  without  notice,  acquired 
no  title  to  the  property,  and  the  owner  of  the  liquor  was 
entitled  to  a  return  thereof  on  paying  to  such  purchaser 
his  payments  for  warehouse  charges  and  the  govern- 
ment tax.10 

1  Davis  v.  Russell,  52  Cal.  611,  615.    And  see  Blackburn  on  Sales, 
297  ;  Bennett's  Benjamin  on  Sales,  p.  931,  §  815. 

2  See  2  Schouler  on  Personal  Property,  p.  568,  \  556,  n. 

3  Gibson  v.  Stevens,  8  How.  384  ;  Shepardson  v.  Gary,  29  Wis.  34  ; 
2  Schouler  on  Personal  Property,  §  556,  note  on  p.  568,  so  citing  these 
cases  :  Horr  v.  Baker,  8  Cal.  613  ;  Davis  v.  Busseil,  52  Cal.  611. 

4  See  Stims.  Am.  Stat.  Law  pp.  517-519,  \\  4370-4372,  for  analysis  of 
enactments  on  this  general  subject. 

5  Yenni  ?-.  McXamee,  45  N.  Y.  614  ;  N.  Y.  Laws,  1858,  ch.  326 ;  as 
cited,  2  Schouler  on  Personal  Property,  p.  568,  §  556,  n.    And  see  Mass. 
Pub.  Stats,  ch.  72,  g  1 ;  Rev.  Stats.  111.  1880,  ch.  114,  §  142 ;  Burton  v. 
Curyea,  40  111.  320  ;  Bennett's  Benjamin  on  Sales,  p.  932,  §  815,  n.  m. 

6  Thus  in  Kentucky,  under  the  statute,  with  certain  conditions, 
the  transfer  of  the  receipt  passes  the  property  in  the  goods :  See 
Cochran  r.  Ripy,  13  Bush,  495,  502.    But  even  though  the  statute  con- 
fer negotiable  qualities  on    such  instruments,  it  could  not  fairly 
render  the  warehouseman  a  guarantor  of  the  title  of  property  placed 
In  his  custody:  Insurance  Co.  v.  Kiger,  103  U.  S.  352;  as  cited,! 


315  DOCUMENTS  OF  TITLE.  $   217 

rarehouse 
State  v. 


,     -         .  .     .    .  ,       . 

7    Allen  v.  Maury,  66  Ala.  10.    It  merely  stands  in  th 
property  represented  by  it:  Allen  v.  Maury,  66  Ala.  10. 
receipts  made  payable  to  bearer  are  not  negotiable  ;  but  they  require 
a  written  indorsement  and  delivery  :   1  Schouler  on  Persona]  Prop- 
erty, §  472,  n.  1 ;  citing,  6  Mo.  App.  172. 


^ae  place  of  the 
.  10.  Warehouse 
but  they  require 


v.  Frank,  12  Or.  507  ;  distinguishing,  Solomons  v.  Bushnell,  11  ( 
and  quoting  with  approval,  Hallgarten  v.  Oldham,  135  Mass.  1. 


also,  Lickbarrow  v.  Mason,  2  Term  Hep.  63;  1  Smith's  Leading  Cases 
(7th  Am.  ed  ),  1198  ;  Second  Nat.  Bank  v.  Walbridge,  19  Ohio  St.  419  ; 
Ins.  Co.  v.  Kiger,  103  U.  S.  356. 

10  Bliss  v.  Carroll,  9  Pacif.  Kep,  (Cal,)  88 ;  S.  C.  21  The  Reporter. 
140 ;  Sup.  Ct.  Cal.  Dec.  23, 1885. 

§  217  Documents  of  title,  —  Enactments  concerning. 
Various  acts  of  legislation  have  been  passed,  both  in 
England  and  America,  which  for  certain  purposes 
therein  specified,  preserve  or  destroy  liens,  or  give 
certain  classes  of  documents  of  title  a  quasi  negotiable 
character , l  and  prominent  among  such  statutes  are  the 
English  Factors'  Acts 2  and  Bills  of  Lading  Act,3  whose 
features  are  followed  in  this  country  in  the  codes  of 
some  of  the  States.4 

Assimilation  to  bills  of  lading.  And  among  other 
changes  effected  by  the  latest  English  Factors'  Acts5  all 
documents  of  title,  when  in  the  hands  of  a  bona  fide 
transferee  for  value  from  the  original  purchaser,  are 
assimilated  to  bills  of  lading,  for  the  purpose  of  defeat- 
ing the  seller's  lien  and  stoppage  in  transitu.6 

Protection  of  pledgee,  etc.  So  the  effect  of  the  late 
English  statutes  is  to  now  enable  not  only  the  'bona  fide 
buyer  of  goods  under  indorsement  of  the  bill  of  lading, 
but  also  a  party  who  loans  or  advances  money  upon 


§   218  DOCUMENTS  OF  TITLE.  316 

the  faith  of  such  security,7  to  prevail  in  title  over  the 
original  seller  who  has  actually  transferred  the  docu- 
ment, and  suffered  it  to  go  into  the  market.8 

Lost  or  stolen  documents.  But  one  who  buys  or  ad- 
vances on  the  faith  of  these  documents  of  title,  does  not  so 
far  stand  in  the  same  position  as  the  innocent  holder  for 
value  of  a  genuine  bill  of  exchange  or  promissory  note, 
as  to  be  able  to  claim  the  goods  when  the  document 
came  to  him  through  a  finder  or  thief  who  had  no  right 
thereto.9 

Misdescription  in.  And  in  the  absence  of  legislation, 
usage,  or  express  agreement,  it  seems  that  nothing  is  to 
be  delivered  up  under  the  document  but  the  goods 
which  it  actually  represents,  whatever  error  of  de- 
scription not  of  a  fraudulent  character  may  be  made  in 
the  document.10 

1  2  Schouler  on  Personal  Property,  p.  568,  \  55,  upon  which  para- 
graph based. 

2  4  Geo.  4,  ch.  83,  ?  3;  6  Geo.  4,  ch.  94  ;  5,  6,  Viet.  ch.  30  ;  40,  41,  Viet. 
ch.  30.    See  Bennett's  Benjamin 'on  Sales,  pp.  922, 926,  \  809  ;  Campbell 
on  Sales,  412. 

3  18, 19,  Viet.  ch.  Ill ;  Bennett's  Benjamin  on  Sales,  p.  928,  \  811 ; 
Campbell  on  Sales,  66 ;  Barber  v.  Meyerstein,  Law  R.  4  H.  L.  317 ; 
Jessel  v.  Bath,  Law  R.  2  Ex.  267. 

4  See  Dows  v.  Greene,  24  N.  Y.  638 ;  Hale  v.  Milwaukee  Dock  Co. 
29  \Vis.  482. 

5  40,  41,  Viet.  ch.  39  (1877).    See  Bennett's  Benjamin  on  Sales, 
p.  026,  §  809  a  ;  Campbell  on  Sales,  417,  419. 

6  2  Schouler  on  Personal  Property,  p.  568,  \  55fi,  n. 

7  See  §  205,  on  LIMITATIONS  ox  EXEMPTION  OF  BONA  FIDE 
PURCHASER. 

8  Short  v.  Simpson,  Law  R,.  1  Com.  P.  248  ;  Barber  v.  Meyerstein, 
Law  R.  4  H.  L.  317  ;  Pease  r.  Gloahec,  Law  R.  1  P.  C.  219,  as  noted  ;  2 
Schouler  on  Personal  Property,  p.  568,  g  556,  n. 

9  Gurney  v.  Behrend,  3  El.  <fe  B.  622 ;  Stollenwerck  v.  Thacher.  1!5 
Mass.  2J-1 ;  Blackburn  on  Sales,  279  ;  as  cited,  2  Schouler  on  Personal 
Property,  p.  568,  §  5-A  n. 

10  Jessel  ?;.  Bath,  Law  R.  2  Ex.  267  (weight  wrongly  expressed) ; 
Hale  v.  Milwaukee  Dock  Co.  29  Wis.  482  ("  salt  pork  "  described  as 
"  mess  pork  ").  See  2  Schouler  on  Personal  Property,  p.  56:),  \  556,  n., 
making  these  citations  in  support  of  text. 

\  218.  Statutory  scope  of  term,  —  Under  English  Fac- 
tors1' Acts.  Documents  of  title  under  the  English  Fac- 


317  DOCUMENTS  OF  TITLE.  §   219 

tors'  Acts,1  are  stated  to  include  bills  of  lading,  India 
warrants,  dock  warrants,  warehouse-keepers'  certifi- 
cates, warrants  or  orders  for  the  delivery  of  goods,  or 
any  other  document  used  in  the  ordinary  course  of 
businesses  proof  of  the  possession  or  control  of  goods.2 
Cash  receipts.  But  the  suggestion  has  been  repudiated 
that  cash  receipts  given  by  vendees  to  their  sub-pur- 
chasers, upon  the  presentation  of  which  the  latter  re- 
ceived the  goods  from  the  master  of  the  ship  in  which 
the  goods  lay,  were  documents  of  title  as  equivalent  to 
delivery  orders.3 

1  Expression  criticised  :  Campbell  on  Sales,  414. 

2  5,  6,  Viet.  ch.  39,  §  4.    Or  authorizing,  or  purporting  to  authorize, 
either  by  indorsement  or  by  delivery,  the  possessor  of  such  docu- 
ment to  transfer  or  receive  goods  thereby  represented  :  5,  6,  Viet, 
ch.  39,  §  4. 

3  Kemp  v.  Talk,  7  App.  Gas.  573,  584.    See  Bennett's  Benjamin  on 
Sales,  p.  994,  \  863,  n.  h. 

$  219.  Delivery  orders,  —  Nature  and  effect.  Inde- 
pendently of  legislation  in  England,  the  indorsement  of 
of  such  instruments  as  delivery  orders  has  no  effect 
there  beyond  that  of  an  authority  to  receive  possession  ; l 
and  what  are  known  as  delivery  warrants,  wharfingers' 
certificates,  and  the  like,  have  been  pronounced  to  be 
no  documents  of  title  representing  the  goods 2  in  any 
such  sense,  even  with  reference  to  third  parties,  as  to  be 
sufficient  to  carry  the  complete  property  and  possession 
out  of  the  seller.3  Thus,  in  the  case  of  delivery  orders, 
as  meaning  orders  given  by  the  vendor  on  a  bailee  who 
holds  possession  as  agent  of  the  vendor,  the  delivery  is 
not  complete  until  the  bailee  attorns  to  the  buyer.4 

Indorsement  to  sub-vendee.  And  a  delivery  order  lias 
been  regarded  as  differing  in  effect  from  a  bill  of  lad- 
ing,5 so.  that  prior  to  the  latest  of  the  factors'  acts,6  its 
indorsement  by  a  vendee  to  a  sub-vendee  might  not 
affect  the  lien  of  the  original  vendor.7 


§   220  DOCUMENTS  OF  TITLE.  318 

1  Blackburn  on  Sales,  297.    A  delivery  order  differs  from  a  bill  of 
lading  in  not  taking  away  the  right  of  the  vendor  to  prevent  the 
delivery  of  the  goods  :  McEwan  v.  Smith,  2  H.  L.  Cas.  309. 

2  See  2  Schouler  on  Personal  Property,  p.  56T,  ?  556,  n.,  whence 
paragraph  derived. 

3  Farina  r.  Home,  16  Mees.  &  W.  119 ;  Gunn  v.  Bolckow,  Law 
R.  10  Cl).  491  ;  McEwan  v.  Smith,  2  H.  L.  Cas.  309.    See  2  Schouler  on 
Personal  Property,  \  392 ;  Story  on  Sales,  p.  390,  \  3-44  ;  Shepardson  v. 
Cary,  29  Wis.  34. 

4  Bennett's  Benjamin  on  Sales,  p.  930,  §  814  (basis  of  this  and 
next  paragraph).    And  thus  becomes  the  latter's  agent  as  custodian 
of  the  goods:  Bennett's  Benjamin  on  Sales,  pp.  191,  193,  \\  174.  177. 
See,  also,  Deady  r.  Uoodenough,  5  Up.  Can.  C.  P.  163.    Showing  with- 
out surrendering  insufficient  to  require  warehouseman  to  part  with 
goods:  Bartlett  v.  Holmes,  13  Com.  B.  630  ;  22  Law  J.  Com.  P.  182. 

5  See  citations  in  note  after  next. 

6  40,  41  Viet.  ch.  39,  \  5  (1877). 

7  McEwan  v.  Smith,  2  H.  L.  Cas.  309  ;  Griffiths  v.  Perry,  1  El.  & 
E.  680  ,  28  Law  J.  Q.  B.  208. 

$  220.  Dock  warrants,  etc.  —  Distinguished  from  bills 
of  lading.  Dock  warrants  and  Avarehouse  warrants  or 
certificates  have  also  been  regarded  as  differing  from 
bills  of  lading  in  concerning  goods,  on  land,  of  which 
possession  can  be  taken,  and  in  not  being  ancient  doc- 
uments subject  to  the  law  merchant.1 

Effect  of  indorsement.  Hence,  it  is  declared  that  the 
indorsement  of  a  delivery  order  or  dock  warrant  has 
not,  independently  of  the  factors'  acts,  any  effect  beyond 
that  of  a  token  of  an  authority  to  receive  possession.2 

1  Blackburn  on  Sales,  297.    But  see  Davis  v.  Russell,  52  Cal.  611 , 615. 

2  Blackburn  on  Sales,  297  ;  Farina  v.  Home,  16  Mees.  &  W.  119. 
And  see  Mottram  r.  Heyer,  5  Denio,  630 ;  Southwest  Freight  Co.  v. 
Stanard,  44  Mo.  71 ;  Burton  v.  Curyea,40  111.  320  ;  Chicago  Dock  Co.  v. 
Foster,  48  111.  507;  Bennett's  Benjamin  on  Sales,  pp.  931-9%,  \\  81"- 
817,  basis  of  foregoing  matter.    Conversion  by  pledgee  delivering 
dock  warrant  to  vendee  under  premature  sale  :  Johnson  v.  Stear,  15 
Com.  B.  N.  S.  330  ;  33  Law  J.  Com.  P.  130. 


319  DELIVERY.  I   221 

CHAPTER  XVII. 

DELIVERY. 

\  221.  Scope  of  term. 

g  222.  Actual  and  constructive  delivery. 

2  223.  Seller's  custody. 

g  224.  Transfer  of  title  without  delivery. 

2  225.  Delivery  and  payment  concurrent. 

2  226.  Credit  sale. 

g  227.  Delivery  under  expectation  of  payment. 

g  228.  Duty  to  deliver. 

g  220.  Place  of  delivery. 

g  230.  Designation  of  place  of  delivery. 

2  231.  Time  of  delivery. 

\  232.  Seasonable  time. 

g  233.  Divisions  of  time. 

\  234.  Computation  of  time. 

g  235.  Quantity  delivered. 

g  236.  Contract  for  indefinite  quantity. 

I  237.  Partial  delivery. 

I  238.  Delivery  by  instalments. 

g  239.  Mode  of  making. 

\  240.  Symbolical  delivery. 

g  241.  Constructive  delivery. 

g  242.  Delivery  of  bill  of  sale,  etc. 

I  243.  Delivery  of  bills  of  lading. 

g  244.  Delivery  of  warehouse  receipts. 

g  245.  Excuses  for  failure  to  deliver,  etc. 

g  240.  Relation  to  third  parties. 

g  247.  Sufficiency  of  delivery  against  creditors. 

g  248.  Delivery  to  carrier. 

g  240.  Seller's  duties  concerning  such  delivery, 

g  250.  Directions  concerning  transportation. 

g  251.  Delivery  to  warehouseman. 

g  252.  Inspection  and  acceptance. 

g  253.  Delivery  to  pass  title. 

g  254.  Various  points  concerning  delivery. 

\  221.  Scope  of  term.  —  In  pursuance  of  contract.  The 
transfer  of  personal  property  is  effected  by  an  executed 
contract,  consisting  of  a  contract  or  agreement  on  the 


I    221  DELIVERY.  320 

terms  of  sale,  by  the  parties  or  their  agents,  and  a  deliv- 
ery, actual  or  constructive,  pursuant  to  the  terms  of  such 
agreement.1 

As  denoting  transfer  of  title  and  of  possession.  But 
the  term  "  delivery  "  is  used  in  the  law  of  sales  in  very 
different  senses.2  It  is  used  in  turn  to  denote  transfer  of 
title,3  and  transfer  of  possession.4 

Appropriation  of  chattel.  And  where  the  parties  have 
agreed,  and  the  specific  articles  are  appropriated  and 
accepted,  then,  independently  of  the  statute  of  frauds,5 
it  is  often  said  there  is  sufficient  delivery  to  pass  the 
title,  although  there  be  no  transfer  of  possession.6  And 
this  must  be  so  in  order  to  be  consistent  with  the  lien 7 
which  remains  to  the  vendor  for  the  price.8  So  it  has 
been  said  that  when  by  the  contract  itself  the  vendor 
appropriates  to  the  vendee  a  specific  chattel,  and  the 
latter  thereby  agrees  to  take  the  specific  chattel  and  pay 
the  stipulated  price,  the  parties  are  then  in  the  same 
position  they  would  be  in  after  a  delivery  in  pursuance 
of  a  general  contract.9 

In  relation  to  statute  of  frauds.  The  courts  also  make 
reference  to  the  delivery  sufficient  to  take  an  oral  agree- 
ment for  the  sale  of  goods  out  of  the  statute  of  frauds,10 
although  the  statute  is  silent  as  to  the  delivery  of  goods 
sold,  which  is  the  act  of  the  seller,  but  requires  the  ac- 
ceptance and  receipt  of  some  part  thereof,  which  are 
subsequent  acts  of  the  buyer.11 

As  including  receipt.  And  delivery  as  applied  to  a 
change  of  possession  in  pursuance  of  a  sale,  is  said  to 
ordinarily  include  both  the  act  of  the  vendor  in  trans- 
ferring the  property,  and  that  of  the  vendee  in  receiv- 
ing it.12 

1  Farlow  v.  Ellis,  15  Gray,  229  ;  Langdell's  Cases  on  Sales,  720, 722. 

2  Morse  v.  Sherman,  106  Mass.  430,  433.    And  see  Messer  r.  Wood- 
man, 22  N.  H.  172  ;  53  Am.  Dec.  241,  247.    Delivery  in  contracts  is  the 
transfer  of  the  possession  of  a  thing  from  one  person  to  another :  1 


321  DELIVERY.  \   222 

Bouvier  Law  Diet.  (15th  ed.)  502.  In  respect  to  sales,  delivery  is 
defined  in  Louisiana  as  the  transferring  of  the  thing  sold  into  the 
power  and  possession  of  the  buyer  :  La.  Code,  art.  2452  ;  Lambeth  v. 
Wells,  12  Rob.  (La.)  51,  54. 

3  Transfer  of  title  generally  :  See  preceding  chapter  on  subject. 

4  Morse  v.  Sherman,  106  Mass.  430,  433.    Delivery  "ex  vessel" 
claimed  under  contract :  Cunningham  v.  Judson  (N.  Y.)  2  N.  E.  Rep. 
915. 

5  Statute  of  frauds  generally :    See  subsequent  chapter  on  that 
subject. 

6  Morse  v.  Sherman,  106  Mass.  430,  433.    And  consult  Brazier  v. 
Ansley,  11  Ired.  12  ;  51  Am.  Dec.  408,  409. 

7  Seller's  lien  generally :  See  subsequent  chapter  on  that  subject. 

8  Morse  ?>.  Sherman,  106  Mass.  430,  433.    See  Simmons  v.  Swift,  2 
Barn.  &  C.  540  ;  Langdell's  Cases  on  Sales.  656,  663  ;  Riddle  v.  Varnum, 
20  Pick.  280, 285.    Marked  distinction  between  delivery  to  pass  title  and 
to  destroy  seller's  lien :  Arnold  v.  Delano,  4  Cush.  33  ;  50  Am.  Dec. 
754,  756.    And  compare  Messer  v.  Woodman,  22  N.  H.  172  ;  53  Am.  Dec. 
241,247. 

9  Dixon  v.  Yates,  5  Barn.  &  Adol.  313  ;  Ross'  Leading  Cases.  55, 
75.    For  the  very  appropriation  of  the  chattel  is  equivalent  to  deliv- 
ery by  the  vendor,  and  the  assent  of  the  vendee  to  take  the  specific 
chattel,  and  to  pay  the  price,  is  equivalent  to  his  accepting  posses- 
sion :   Dixon  v.  Yates,  5  Barn,  cfe  Adol.  313.    See  Morse  v.  Sherman, 
106  Mass.  430,  433.    And  consult  Brazier  v.  Ansley,  11  Ired.  12  ;  51  Am. 
Dec.  408,  409. 

10  See  Marsh  v.  Hyde,  3  ftray,  331,  332 ;  Langdell's  Cases  on  Sales, 
313  ;  Demon  ?>.  Osborn,  1  Pick.  476,  480  ;  II  Am.  Dec.  229  ;  Messer  v. 
Woodman,  22  N.  H.  172  ;  53  Am.  Dec.  241,  242. 

11  Boardman  v.  Spooner,  13  Allen,  353,  357;  Langdell's  Cases  on 
Sales,  610. 

12  Upton  v.  Sturbridge  Cotton  Mills,  111  Mass.  446,  453. 

$  222.  Actual  and  constructive  delivery.  —  /Statement  of 
distinction.  Actual  or  real  delivery  is  the  transfer  of 
the  commodity  sold  to  the  recipient,  while  constructive 
or  symbolical  delivery  may  be  made  with  equal  effect, 
at  least  between  buyer  and  seller,  by  a  transfer  of  some 
article  which  is  a  symbol  or  evidence  of  ownership,1 
such  as  the  delivery  of  the  key  of  a  warehouse  contain- 
ing the  goods  sold,  or  of  the  bill  of  lading  of  goods  at 
sea,  or  of  a  bill  of  sale  of  a  vessel  at  sea.7 

Further  exposition  of  difference.  So  it  has  been  laid 
down  that  actual  delivery  consists  in  the  giving  real 
possession  of  the  thing  sold  to  the  vendee  or  his  serv- 
ants or  special  agents,  who  are  identified  with  him,  and 


I  223  DELIVERY.  322 

represent  him  ; 3  while  constructive  delivery  is  a  general 
term,  comprehending  all  those  acts  which,  although 
not  truly  conferring  on  the  vendee  a  real  possession 
of  the  thing  sold,  have  been  held  constructione  juris, 
equivalent  to  acts  of  real  delivery.4 

1  1  Abbott's  Law  Diet.  360.    Delivery  need  not  be  actual,  but  con- 
structive delivery  may  be  inferred  from  a  variety  of  facts:  See  Ga. 
Code  of  1882,  g  26-14 ;  Stims.  Am.  Stat.  Law,  \  4567.  p.  544. 

2  1  Abbott's  Law  Diet.  360.    And  see  Lambeth  v.  Wells,  12  Bob. 
(La.)  51 ;  La.  Code,  art.  2453.    Or  of  a  warehouse  receipt:  See  New- 
comb  i?.  Cabell,  10  Bush,  460,  469. 

3  Bolin  v.  Huffnagle,  1  Rawle,  9,  19.    Actual  possession  exists 
•where  the  thing  is  in  the  immediate  occupancy  of  the  party :  Brown 
v.  Valkening,  64  N.  Y.  80  ;  as  quoted,  Winfleld's  Words  etc.  17. 

4  Bolin  v.  Huffnagle,  1  Rawle,  9,  19.    In  this  sense  constructive 
delivery  includes  symbolical  delivery,  and  all  those  traditiones  fictce, 
which  have  been  admitted  into  the  law  as  sufficient  to  vest  the  abso- 
lute property  in  the  vendee,  and  bar  the  rights  of  lien  and  stoppage 
in  tt-fniftitii.,  such  as  marking  and  setting  apart  the  goods  as  belonging 
to  the  vendee,  charging  him  with  warehouse  rent,  etc. :  Bolin  v. 
Huffnagle,  1  Rawle,  9,  19.    Constructive  possession  is  that  which 
exists  in  contemplation  of  law,  without  actual  personal  occupation  : 
Winfleld's  Words,  etc.  139  ;  quoting,  Brown  v.  Valkening,  64  N.  Y  80. 

§  223.  Seller's  custody,  —  Goods  not  taken  away  by 
buyer.  —  It  is  said  that  when  the  contract  of  sale  is 
complete,  and  the  vendee  does  not  take  away  the  goods, 
the  vendor  may  recover  the  price1  in  tndebitatus  as- 
sumpsit,2  as  the  law  does  not  require  therefor  that 
complete  delivery  or  that  actual  receipt,  which  would 
be  necessary  to  defeat  the  vendor's  lien  for  the  price,8 
or  his  right  of  stoppage  in  transitu*  or  which  would 
be  required  to  take  the  case  out  of  the  statute  of 
frauds.5 

Later  statement  of  law.  And  more  recently  it  has 
been  declared  that  there  may  be  a  bargain  and  sale  of 
goods,  sufficient  to  transfer  the  title,  and  thus  to  sup- 
port an  action  for  goods  bargained  and  sold,  without 
any  such  delivery  as  will  amount  to  a  transfer  of  pos- 
session.6 For  the  transfer  of  title  is  quite  consistent 
with  the  vendor's  retaining  a  lien  for  the  price,  and  so 
retaining  possession  till  the  price  is  paid,7 


323  DELIVERY.  \  224 

1  See  Damon  v.  Osborn,  1  Pick.  476,  481. 

2  Morse  ?>.  Sherman,  106  Mass.  430,  432  ;  citinsr,  Tin-ley  v  Bates,  2 
Hurl.  &  C.  200 ;  Langdell's  Cases  on  Sales,  692 ;  distinguishing,  Atwood 
v.  Lucas,  53  Me.  508.    And  see  Parsons  v.  Dickinson,  11  Pick.  352,  354. 

3  Seller's  lien  generally :  See  subsequent  chapter  on  that  subject. 

4  Stoppage  in  transitu  generally :  See  later  chapter  of  book. 

5  Morse  v.  Sherman,  106  Mass.  430,  432.    Statute  of  frauds  in  gen- 
eral :  See  subsequent  chapter  on  that  subject. 

6  Frazier  v.  Simmons,  139  Mass.  531,  535. 

7  Frazier  v.  Simmons,  139  Mass.  531, 535 ;  citing,  Morse  v.  Sherman, 
106  Mass.  430,  432  ;  Haskins  ?'.  Warren,  115  Mass.  514,  533;  Safford  ?<. 
McDonough,  120  Mass.  290;  Arnold  v.  Delano,  4  Cush.  33,  38 ;  50  Am. 
Dec.  754  ;  Simmons  v.  Swift,  5  Barn.  &  C.  857  ;  Langdell's  Cases  on 
Sales,  659  ;  2  Kent  Com.  492. 

§  224.  Transfer  of  title  without  delivery.  —  In  England. 
It  is  now  well  settled1  that  by  the  law  of  England,  by  a 
contract  for  the  sale  of  specific  ascertained  goods,  the 
property  immediately  vests  in  the  buyer,  and  a  right 
to  the  price  in  the  seller,  unless  it  can  be  shown  that 
such  was  not  the  intention  of  the  parties  ; 2  so  that  the 
sale  of  a  specific  chattel  passes  the  property  in  it  to 
the  vendee  without  delivery.3  All  that  is  essential  to 
the  sale  of  a  chattel  at  common  law  is  the  agreement 
of  the  parties  that  the  property  in  the  subject-matter 
shall  pass  from  the  vendor  to  the  vendee  for  a  consider- 
ation given  or  promised  to  be  given  by  the  vendee.4 

In  United  States.  And  in  this  country  it  is  the  general 
rule  that  a  sale  of  personal  property  is  complete  by  the 
mere  consent  of  the  parties  and  without  delivery,5  at 
least  as  between  the  parties.6  So  soon  as  a  bargain  of 
sale  of  personal  goods  is  struck,  the  contract  becomes 
absolute,  without  actual  payment  or  delivery,  and  the 
property  and  risk  of  accident  to  the  goods  vest  in  the 
buyer.7 

Right  of  possession.  But  though  the  vendee  in  the 
case  of  a  bargain  of  sale  acquires  the  right  of  property  in 
the  thing  sold,  yet  the  payment  of  the  price  is  a  preced- 
ent condition  implied  in  the  contract,  and  the  payment 
or  tender  thereof  alone  entitles  him  to  the  possession.8 


I  224  DELIVERY.  324 

Delivery  as  passing  title.  It  is  also  sometimes  de- 
clared, though  in  speaking  of  the  execution  of  the  con- 
tract, that  without  delivery,  the  title  does  not  vest  in 
the  vendee  so  as  to  enable  him  to  make  title  to  a  third 
party.9  And  in  Pennsylvania,  it  is  said  that  the  only  ex- 
ceptions to  the  rule  that  upon  a  sale  of  personalty  the 
title  passes  by  delivery,10  are  where  the  sale  is  for  cash 
and  the  delivery  is  upon  condition  that  the  payment  be 
made  as  a  concurrent  act,11  and  where  the  delivery  is 
without  condition,  but  is  procured  by  fraud  or  artifice12 
on  the  part  of  the  purchaser.13 

Under  Louisiana  law.  Under  the  law  of  Louisiana, 
also,  a  contract  of  sale  is  perfect  as  between  the  parties, 
from  the  moment  of  valid  agreement,  and  operates  to 
vest  property  in  the  vendee,  even  though  there  has 
been  no  delivery.14  And  although,  in  the  absence  of 
delivery,  such  sales  are  without  effect  as  against  seizing 
or  attaching  creditors  of  the  vendor  and  his  bona  fide 
transferees  in  possession  and  without  notice,  yet  the 
vendee's  title  is  not  affected  by  the  vendor's  mere  sur- 
render in  insolvency  to  his  creditors.15 

1  See  Morse  v.  Sherman,  106  Mass.  430,  433. 

2  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551,  556  ;  Langdell's  Cases  on 
Sales,  624,  632  ;  Calcutta  Co.  v.  Be  Mattos,  32  Law  J.  Q.  B.  326,  329. 
And  see  Simmons  v.  Swift,  5  Barn.  <fe  C.  857;  Langdell's  Cases  on 


.  .          . 

Sales,  659,  662  ;  Tarling  v.  Baxter,  6  Barn.  <fe  C.  360  ;  Ross'  Leading 
Cases,  1,  4  ;  1  Langdell's  Cases  on  Sales,  621,  623. 

3  Dixon  •?>.  Yates,  5  Barn.  &  Adol.  313;  Ross'  Leading  Cases,  55, 
74.    And  see  Hinde  v.  Whitehouse,  7  East,  55S  ;  Langdell's  Cases  on 
Sales,  102,  110;  Noy's  Maxims,  88;  2  Blackst.  Com.  448;  Wade  7;. 
Moffitt,  21  111.  110,  111,  112  ;  74  Am.  Dec.  79. 

4  Newcomb  v.  Cabell,  10  Bush,  460,  468  ;  quoting,  Parsons  on  Con- 
tracts p.  4:!5.    And  see  Wade  v.  Moffitt,  21  111.  110,  111  ;  74  Am.  Dec.  79. 
Compare,  however,  Gardner  v.  Howland,  2  Pick.  599,  602. 

5  See  Taylor  v.  Twenty-Five  Bales  of  Cotton,  26  La.  An.  247. 
Delivery  not  necessary  to  sale  :  Nance  r.  Metcalf,  1  West  Rep.  (Mo.) 
441,  442,  44:?.    Compare  contra,  declarations  in  Farlow  v.  Ellis,  15  Gray, 
229  ;  Langdell's  Cases  on  Sales,  720,  722. 

6  See  Ricker  v.  Cross,  5  N.  H.  570,  571  ;  Bradeen  v.  Brooks,  22  Me. 
463,  470  ;  Puckett  v.  Reed,  31  Ark.  131,  136  ;  Hooben  v.Bidwell,  16  Ohio, 
509,  511  ;  Wade  v.  Moffitt,  21  111.  110,  111,  112  ;  74  Am.  Dec.  79,  reviewing 
the  cases. 


325  DELIVERY.  \  225 

7  Willis  v.  Willis,  6  Dana,  48 ;  citing,  2  Kent  Com.  492.    And  see 
Wade  v.  Moffitt,  21  III.  110,  112;  74  Am.  Dec.  79;  Potter  v.  Coward, 
Meigs,  22,  26  ;  Wing  v.  Clark,  24  Me.  366,  372.    Delivery  not  necessary 
to  pass  title :  See  Pierce  v.  Moore,  1  Tex.  App.  (Civ.  Cas.)  \  911 ;  Ander- 
son v.  Levyson,  1  Tex.  App.  (Civ.  Cas.)  \  927.    Delivery  to  pass  risk  :  to 
cotton  "free  on  board"  :   Hobart  v.  Littlefield,  13  R.  I.  341 ;  though 
seller  to  pasture  lambs,  Bertelson  v.  Bowers,  81  Ind.  512;  though 
wood  not  measured  or  paid  for,  Upton  v.  Holmes,  51  Conn.  500.   Until 
delivery,  shrinkage  at  risk  of  seller:  Gilman  v.  Andrews,  20  The 
Reporter  (Mich.)  180. 

8  Willis  v.  Willis,  6  Dana,  48,  49.    And  it  is  said  that  though  the 
prope-ty  passes  by  a  bargain  without  delivery,  yet  the  vendee  has 
no  right  of  possession  until  delivery,  which  cannot  be  obtained  till 
payment  is  made,  or  the  other  terms  of  sale  complied  with  :  Barnes 
v.  Bartlett,  15  Pick.  71,  77. 

9  Farlow  v.  Ellis,  15  Gray,  229  ;  Langdell's  Cases  on  Sales,  720,  722. 

10  Delivery  to  pass  title :  Forcheimer  v.  Stewart,  65  Iowa,  594 ;  54 
Am.  Rep.  30. 

11  Delivery  and  payment  concurrent :  See  \  225. 

12  See  Alexander  v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  180  ; 
$  205,  on  LIMITATIONS  UPON  EXEMPTION,  in  chapter  on  BONA  FIDE 
PURCHASERS. 

13  Logan  v.  Smith,  14  Phila.  114,  citing  various  cases. 

14  Nicolopulo  v.  His  Creditors,  37  La.  An.  473.    And  see  La.  Code 
art.  2456. 

15  Nicolopulo  v.  His  Creditors,  37  La.  An.  472. 

g  225.  Delivery  and  payment  as  concurrent, —  Contem- 
poraneous character.  Where  the  contract  makes  no 
special  provision  on  the  subject,  the  payment  for  and 
receipt  of  the  property  are  contemporaneous  acts,1  and 
the  rights  of  the  parties  in  this  respect  are  reciprocal.2 
In  such  cases  a  vendor  can  never  be  compelled  to  part 
with  his  property  without  payment,3  nor  the  vendee  to 
pay  for  the  same  without  receiving  it.4 

Allegations  of  readiness,  etc.  And  the  vendor  cannot 
insist  on  payment  of  the  price,  without  alleging  that  he 
is  ready  and  willing  to  deliver  the  goods,5  nor  can  the 
buyer  demand  delivery  of  the  goods,  without  alleging 
that  he  is  ready  and  willing  to  pay  the  price.6 

1  The  promise  to  deliver  involved  in  an  agreement  of  sale,  and 
the  promise  to  pay  the  purchase  money,  are  mutually  dependent, 
and  neither  party  is  bound  to  perform  without  contemporaneous 
performance  by  the  other:   Haskins  v.  Warren,  115  Mass.  533;   as 
noted,  Bennett's  Benjamin  on  Sales,  \  677,  p.  785,  n./. 

2  Phelps  v.  Hubbard,  51  Vt.  489,  493. 

NEWMARK  SALES.  — 28. 


I  226  DELIVERY.  326 

3  Delivery  not  required  before  payment:  Lapene  v.  Badeaux, 
19  The  Reporter  (La.)  303. 

4  Phelps  v.  Hubbard,  51  Vt.  489,  -493.    Delivery  and  payment  con- 
current conditions :  See  Bennett's  Benjamin  on  Sales.  \  677,  p.  785,  n. 
/ ;  and  2  Corbin's  Benjamin  on  Sales,  §  1016,  n.  2  ;  citing  following 
cases:  Mich.  Cent,  R.  R.  Co.  v.  Phillips,  00  111.  190  ;  Barnes  v.  Bart- 
lett,  15  Pick.  77 ;  Knight  n  New  England  Worsted  Co.  2  Cush.  271,  288; 
Scudder  v.  Bradbury,  106  Mass.  422,  427  ;  Upton  v.  Sturbridge  Cotton 
Mills,  111  Mass.  446;  Goodwin  v.  Bost.  etc.  R.  R  111  Mass.  487  ;  Has- 
kins  i'.  Warren,  115  Mass.  533;  Freeman  v.  Nichols,  116  Mass.  309; 
South w.  Freight  Co.  v.  Plant,  45  Mo.  517  ;  West,  Transp.  Co.  v.  Mar- 
shall. 4  Abb.  N.  Y.  App.  575  ;  Tipton  v.  Feltner,  20  N.  Y.-423  ;  Mack- 
aness  v.  Long,  85  Pa.  St.  158 ;  Leonard  r.  Davis.  1  Black,  476  ;  McCann 
v.  Kirlin,3  Allen  N.  B.  345  ;  Platt  v.  McFaulj  4  Up.  Can.  C.  P.  293; 
Moore  v.  Logan,  5  Up.  Can.  C.  P.  294 ;  Phippen  v,  Stickney,  19  Up. 
Can.  C.  P.  4164  Butters  v.  Stanley,  21  Up.  Can.  C.  P.  402  ;  Hancock  v. 
Gibson,  3  Up.  Can.  Q.  B.  41 ;  Wright  v.  Weed,  6  Up.  Can.  Q.  B.  140 ; 
Hefferman  v.  Berry,  32  Up.  Can.  Q.  B.  518. 

5  See  citations  in  next  note. 

6  Bennett's  Benjamin,  \  677,  p.  786,  n.  .17  ;  citing,  Toledo  etc.  Ry. 
Co.  v.  Gilvin,  81  111.  511 ;  Haskiris  v.  Warren,  115  Mass.  533  ;  Chapin  v. 
Potter,  1  Hilt.  366,  376  ;  Pierson  v.  Hoag,  47  Barb.  244  ,  Whitcomb  v. 
Hungerford,  42  Barb.  177  ;  Fleeman  v.  McKean,  25  Barb.  474 ;  Conway 
v.  Bush,  4  Barb.  564 ;  McDonald  v.  Hewlett,  15  Johns.  349 ;  Hancock 
v.  Gibson,  3  Up.  Can.  Q.  B.  41. 

$  226,  Credit  sale.  —  Delivery  under  promise  to  pay. 
A  sale  may  be  as  complete,  and  the  title  to  a  chattel 
pass  as  fully,  in  consideration  of  a  promise  to  pay,  as 
by  an  actual  payment,  when  possession  is  given.1  And 
if  a  vendor  relies  on  the  promise  of  the  vendee  to  per- 
form the  conditions  of  the  sale,  and  delivers  the  goods 
absolutely,  the  right  of  property  will  be  changed, 
although  the  conditions  never  be  performed.2  For 
wherever  there  has  been  absolute  delivery  pursuant  to 
a  bargain  perfect  in  its  members,  the  ownership  of  the 
property  is  vested  by  it.3 

Buyer's  right  of  possession.  But  though,  where  the 
sale  is  upon  credit,  and  nothing  is  agreed  upon  as  to 
the  time  of  delivering  the  chattel,  the  vendee  is  im- 
mediately entitled  to  the  possession,  and  the  right  of 
possession  and  the  right  of  property  vest  at  once  in 
him,4  yet  his  right  of  possession  is  not  absolute,  but  is 
liable  to  be  defeated  if  he  becomes  insolvent  before  he 
obtains  possession.5 


327  DELIVERY.  §   227 

1  Mackaness  v.  Long,  85  Pa.  St.  158, 163. 

2  Harris  v.  Smith,  3  Serg.  &  R.  21  (sale  by  auction) ;  as  stated  in 
Mackaness  v  Long,  85  Pa.  St.  158, 162,  declaring  that  this  was  held  to 
be  a  general  rule  in  Scott  v.  Wells,  6  Watts  &  8.  357. 

3  Mackaness  v.  Long,  85  Pa.  St.  158, 162. 

4  Bloxam  v.  Sanders,  4  Barn.  &  C.  941 ;  Ross'  Leading  Cases,  48. 

5  Bloxam  v.  Sanders,  4  Barn.  &  C.  941 ;  Ross'  Leading  Cases,  48  ; 
citing,  Tooke  v.  Hollingsworth,  5  Term,  Rep.  215. 

\  227,  Delivery  under  expectation  of  payment.  —  Waiver 
"by  absolute  delivery.  Payment  of  the  price  is  the  con- 
dition1 upon  which  alone  the  purchaser  can  require 
the  seller  to  complete  the  sale  by  delivery  of  the  prop- 
erty.2 But  it  is  so  at  the  option  of  the  seller,  and  if  he 
proceeds  to  deliver  without  insisting  upon  payment, 
and  without  qualifying  the  act  in  some  way,  the  con- 
dition or  mutual  dependence  is  waived  or  severed,3  the 
contract  is  executed  finally  on  his  part,  and  he  retains 
no  lien  upon  the  property.* 

Seller }s  right  to  reclaim  goods.  If,  however,  the  de- 
livery and  payment  are  to  be  simultaneous,  and  the 
goods  are  delivered  in  the  expectation  that  the  price 
will  be  immediately  paid,  the  refusal  to  make  payment 
will  be  such  a  failure  on  the  part  of  the  purchaser  to 
perform  the  contract  as  to  entitle  the  vendor  to  put  an 
end  to  it  and  reclaim  the  goods.5 

1  Conditions  generally :  See  1  Bouvier's  Law  Diet.  (14th  ed.)  312. 
And  see  under  chapter  on  CONDITIONAL  SALKS. 

2  Haskiris  v.  Warren,  115  Mass.  533. 

3  See  Smith  v.  Lynes,  1  Seld.  41 ;  Langdell's  Cases  on  Sales,  724, 725. 

4  Haskins  v.  Warren,  115  Mass.  533.    Delivery  of  possession  un- 
qualified, is  a  release  or  waiver  of  his  right,  whether  it  be  in  the 
nature  of  a  condition  affecting  the  title  or  only  a  lien  for  the  price  : 
Haskins  ?>.  Warren,  115  Mass.  533.    So  quoted,  Bennett's  Benjamin 
on  Sales.  §  677,  p.  785,  n./.    And  consult  Story  on  Sales,  §  313,  p.  345; 
Farlow  v.  Ellis,  15  Gray,  229  ;  Langdell's  Cases  on  Sales,  720,  722. 

5  Paul  D.  Reed,  52  N.  H.  136, 138;  Bennett's  Benjamin  on  Sales, 
?  677,  p.  788,  n. /. ;  citing,  also,  Beauchamp  v.  Archer,  58  Cal.  4:<!  :  41 
Am.  Rep.  2(56  ;  Owens  v.  Weedman,  82  111.  409  ;  Deshon  v.  Bigelow,  8 
Gray.  15'.);  Marston  ?'.  Baldwin,  17  Mass.  606;  Ferguson  ?'.  Clifford,  37 
N.  H.  86  ;  Luey  v.  Bundy,9  N.  H.  302  ;  Palmer  v.  Hand,  l.'J  Johns.  MJ  ; 
7  Am.  Dec.  392;  Leven  v.  Smith,  1  Denio,  571;  Conway  v.  Bush,  4 
Barb.  564  ;  Miller  v.  Jones,  66  Barb.  148 ;  Gardner  v.  Clark,  21  .X.  Y. 


§   228  DELIVERY.  328 

399  ;  Hill  v.  McKenzie,  3  Thomp.  &  C.  122 ;  Hodgson  v.  Barrett,  33 
Ohio  St.  63  ;  31  Am.  Rep.  527  ;  Leedom  v.  Phillips,  1  Yeates,  527  ;  Harris 
v.  Smith.  3  Serg.  &  R.  20  ;  Henderson  v.  Lauck,  21  Pa.  St.  359  :  Riley 
v.  Wheeler,  42  Vt.  528  ;  Adair  v.  Malone,  1  Hud.  &  B.  49.  Consult, 
also,  Story  on  Sales,  §  13,  p.  344. 

\  228,  Duty  to  deliver.  —  Not  in  absence  of  agreement. 
The  seller,  in  the  absence  of  a  contrary  agreement,  is  not 
bound  to  send  or  carry  the  goods  to  the  buyer;1  but  it 
is  enough  that  he  stands  ready  to  deliver  them  when- 
ever the  buyer  sends  for  them,  and  that  he  offers  no 
improper  obstruction  to  their  removal.2 

Goods  not  taken  by  buyer.  Hence,  in  the  absence  of 
any  agreement,  express  or  implied,  as  to  delivery  by 
the  seller,  the  buyer  must  come  and  take  the  property 
bought  by  him  at  the  place  where  it  is  when  sold,3  and 
if  the  seller  has  not  agreed  to  deliver,  he  may  sue  for 
the  price,  though  the  goods  remain  in  his  possession  ; 4 
but  the  recovery  in  such  cases  is  on  the  common  counts 
for  goods  bargained  and  sold,5  as  delivery  is  essential 
to  support  the  count  for  goods  sold  and  delivered.6 

Under  agreement.  But  the  contract  may  be,  and 
frequently  is,  such  as  requires  the  seller  to  forward  the 
goods  to  the  buyer ; 7  and  notice  to  deliver  will  be  re- 
quisite,8 if  the  parties  have  mutually  manifested  an  in- 
tention that  the  seller  shall  make  delivery  conditional 
upon  the  performance  of  certain  acts  by  the  buyer.9 

1  See  citations  in  n^xt  note.    And  consult  2  Corbin's  Benjamin  on 
Sales,  \  1018,  n.  6 ;  Campbell  on  Sales,  277. 

2  2  Schouler  on  Personal  Property.  §  384  ;  citing,  Bennett's  Benja- 
min on  Sales,  §  679  ;  Story  on  Sales,  |i  300,  301  ;  2  Kent  Com.  505.    It 
is  enacted  in  California  that  one  who  sells  personal  property,  whether 
it  was  in  his  possession  at  the  time  of  sale  or  not,  must  put  it  into  a 
condition  fit  for  delivery,  and  deliver  it  to  the  buyer  within  a  reason- 
able time  after  demand,  unless  he  has  a  lien  thereon  :  Cal.  Civ.  Code, 
g  17->3.    See  Stims.  Am.  Stat.  Law,  p.  544,  §  4566  ;  citing,  also,  Dak.  Civ. 
Code.  %\  997-999.    Demand  held  unnecessary  :  Wagers  v.  Dickey,  17 
Ohio,  439 ;  49  Arn.  Dec.  467,  468. 

3  1  Corbin's  Benjamin  on  Sales,  §  325,  and  notes,  citing  nearly  all 
authorities  stated  in  paragraph.   And  see  §  223,  on  SELLER'S  CUSTODY. 

4  See  Bissell  ?>.  Balcom,  89  N.  Y.  275,  279  ;  Wade  v.  Moffitt,  21  111. 
110 ;  74  Am.  Dec.  79  ;  Kohl  v.  Lindley,  39  111.  195. 


329  DELIVERY.  g   229 

5  See  citations  in  next  note.    And  consult  Morse  v.  Sherman,  106 
Mass.  430,  432  ;  Frazier  v.  Simmons,  139  Mass.  531,  535. 

6  1  Chitty  on  Pleading,  345,  347  ;  Stearns  v.  VVashburn,  7  Gray,  187, 
ISO  ;  Turner  v.  Langdon,  112  Mass.  265  ;  Allingham  v.  O'Maheney,  1 
Pugs.  326. 

7  See  Story  on  Sales,  §  302. 

8  It  is  enacted  in  California  that  when  either  party  to  a  contract 
of  sale  has  an  option  as  to  the  time,  place,  or  manner  of  delivery  he 
must  give  the  other  party  reasonable  notice  of  his  choice,  and  if  he 
does  not  give  such  notice  within  a  reasonable  time,  his  right  of  option 
is  waived  :  Cal  Civ.  Code,  g  1756.    See  Stims.  Am.  Stat.  Law.  p.  544, 


9  See  2  Schouler  on  Personal  Property.  §  384  ;  citing,  Bennett's 
Benjamin  on  Sales,  \  677  ;  Armitage  v.  Insole,  14  Q.  B.  728  ;  Stanton 
?».  Austin,  Law  R.  7  Com.  P.  651  ;  Posey  v.  Scales,  55  Ind.  282.  Notice 
to  deliver  discussed  :  2  Corbin's  Benjamin  on  Sales,  \  1018,  n.  7. 

g  229.  Place  of  delivery.  —  Place  of  sale.  If  no  place 
of  delivery  l  be  designated  by  the  contract,  the  general 
rule  is  that  the  articles  sold  are  to  be  delivered  at  the 
place  where  they  are  at  the  time  of  sale.2  And  the 
store  of  the  merchant,  the  shop  of  the  manufacturer  or 
mechanic,  and  the  farm  or  granary  of  the  farmer,  at 
which  the  commodities  sold  are  deposited  or  kept, 
must  be  the  place  where  the  demand  and  delivery  are 
to  be  made,  when  the  contract  is  to  pay  upon  demand, 
and  is  silent  as  to  the  place.3  Nor  is  it  incumbent  upon 
the  seller,  or  prudent  in  him,  to  take  the  goods  from 
place  to  place  in  search  of  the  buyer,  and  thus  expose 
the  goods  to  hazard  and  increased  expense.4 

Other  place.  But  some  other  place  than  the  place  of 
sale  may  be  required  as  the  place  of  delivery  by  the 
nature  of  the  articles,  or  by  the  usage  of  trade,  or  by 
the  previous  course  of  dealing  between  the  parties,  or 
may  be  inferred  from  the  general  circumstances  of  the 
case.5 

Fixed  by  agreement.  Wherever  a  place  of  delivery  is 
agreed  upon,  the  buyer  is  not  bound  to  accept  the 
goods,  nor  the  seller  to  tender  them  elsewhere;6  but 
when  delivery  is  made  at  a  specified  place,  as  by  rail 
to  a  certain  point,  where  the  buyer  is  to  come  for  the 


1  230  DELIVEEY.  330 

goods,  the  seller's  duty  is  performed,  and  presumably 
the  title  and  its  risks  are  transferred.7 

1  Place  of  delivery  :  Janney  v.  Sleeper,  30  Minn.  473. 

2  2  Kent  Com.  505.    Place  of  sale  as  place  of  delivery  :  Lewis  v. 
Thomas,  14  Mo.  App.  581.    It  is  enacted  in  California  that  personal 
property  sold  is  deliverable  at  the  place  where  it  is  at  the  time  of  the 
sale  or  agreement  to  sell,  or  if  it  is  not  then  in  existence,  it  is  deliv- 
able  at  the  place  where  it  is  produced  :  Cal.  Civ.  Code,  \  1754.    See 
Stims.  Am.  Stat.  Law.  p.  544,  \  4366. 

3  2  Kent  Com.  505,  and  cases  cited  ;  2  Schouler  on  Personal  Prop- 
erty, »3S5;  citing,  also,  Pothk-r  Traite  des  Oblig.  No.  512;  Rice  v. 
Churchill,  2  Denio,  145  ;  Smith  t».  Gillett,  50  111.  2'K) ;  Middlesex  Co.  v. 
Osgood,  4  Gray,  429 ;  Miles  v.  Roberts,  34  N.  H.  253.    Consult,  further, 

2  Corbin's  Benjamin  on  Sales,  §  1022,  p.  890,  n.  10  ;  Bennett's  Benjamin 
on  Sales,  6«2 ;  citing,  2  Chitty  on  Contracts  (llth  Am.  ed.),  120,  et  seq. 
and  notes  ;  Burr  v.  Myers,  3  Watts  &  S.  299;  Lobdell  v,  Hopkins,  5 
Cowen,  516  ;  Goodwin  v.  Holbrook,  4  Wend.  380 ;  Kraft  v.  Hurtz,  11 
Mo.  109. 

4  2  Schouler  on  Personal  Property,  2  385. 

5  Story  on  Sales,  \  308. 

6  See  Story  on  Sales,  ?  308.    Designation  of  place  of  delivery  :  See 
succeeding  section  on  that  subject.    Waiver  of  condition  determining 
place  9f  delivery  :  McCombs  v.  McKennan,  2  Watts  &  S.  216.    Parol 
variation  of  stipulated  place  of  delivery  :  Hunt  v.  Thurman,  15  Vt. 
336 ;  40  Am.  Dec.  683,  685. 

7  See  Sedgwick  v.  Cottenham,  54  Iowa,  512  ;  also,  Washburn  Co. 
v.  Russell,  130  Mass.  543.    Arid  if  the  goods  at  the  time  of  sale  be  in 
the  buyer's  own  possession,  and  under  his  control,  there  is  presumed 
to  be  no  other  place  of  delivery  agreed  upon,  nor,  indeed,  any  formal 
act  of  delivery  expected  at  all :  2  Schouler  on  Personal  Property • 
?  385  ;  citing,  Shurtleff  v.  Willard,  19  Pick.  210  ;  Warden  r.  Marshall, 
99  Mass.  305  ;  Lake  v.  Morris,  30  Conn.  201.    License  to  go  on  prem- 
ises, etc. :  See  2  Corbin's  Benjamin  on  Sales,  §  1020,  n.  << ;  Bennett's 
Benjamin  on  Sales,  §§  679-681  ;  citing,  McLeod  ?'.  Jones,  105  Mass.  403, 
and  cases  cited  ;  McNeal  v.  Emerson,  15  Gray,  384  ;  Wood  ?'.  Manley, 
11  Ad.  <fe  E.  34  ;  Bentall  v.  Bur,  3  Barn.  &  C.  423 ;  Langdell's  Cases  on 
Sales,  132;  Wood  v.  Tassell,  6  Q,  B.  234  ;  Salter  v.  Woollams,  2  Man. 
&  G.  650. 

g  230,  Designation  of  place  of  delivery.  —  Buyer's  ad- 
dress. Sometimes  the  seller  holds  himself  ready  by 
the  express  terms  of  the  contract  to  send  the  chattels 
to  the  buyer's  address  i1  and  if  this  address  be  desig- 
nated, the  seller  must  be  ready  to  make  appropriate 
delivery.2 

Seller's  readiness.  And  in  general,  where  the  vendee 
is  by  the  terms  of  the  contract  to  designate  a  place  of 
delivery,  the  vendor  is  bound  to  be  ready  to  make  de- 
livery at  the  place  designated ; 3  but  if  the  vendee  omit 


_    ..  Nichols,  5  Gray,  309,  311.    Delivery  at  place  designated 

by  vendee's  agent:  Mellidge  v.  Boston  Iron  Co.  5  Cush.  158  ;  51  Am. 


331  DELIVERY.  §   231 

to  designate  the  place,  the  vendor  is  guilty  of  no  breach 
of  contract,  if  the  articles  are  ready  for  delivery  at  the 
time  fixed  by  the  contract.* 

1  Devine  v.  Edwards,  101  111.  138. 

2  2  Scliouler  on  Personal  Property,  \  385. 

3  Lucas  v.  Nic 
«y  vendee's 
Dec.  5i),  72. 

4  Lucas  v.  Nichols,  5  Gray,  309. 311 ;  Bennett's  Benjamin  on  Sales, 
632,  n.  a,  p.  794 ;  citing,  also,  Smith,  v.  Wheeler,  7  Or.  40  ;  Bolton  v. 
Kiddle,  35  Mich.  13;  Boyd  v.  Gunnison,  14  W.  Va.  1;  Brunskill  v. 
Muir,  15  Up.  Can.  Q,  B.  213.    If  the  buyer  was  to  name  the  place  of 
delivery  and  fails  to  do  so,  the  seller's  offer  of  readiness  to  perform 
suffices  for  his  own  duty :  Hunter  v.  Wetsell,  84  N.  Y.  549 ;  38  Am. 
Kep.  544  ;  as  noted,  2  Schouler  on  Personal  Property,  §  385,  p.  387. 

§  231.  Time  of  delivery .  —  Failure  to  comply  with  agree- 
ment concerning.  If  any  time  of  delivery  be  agreed  upon, 
arid  the  vendor  fail  to  comply  with  the  agreement,  the 
vendee  will  not  be  bound  to  accept,  if  a  compliance 
with  the  terms  in  respect  of  time  be  an  essential  con- 
sideration of  the  bargain.1  And  if  the  vendee  suffer  in- 
jury by  the  neglect,  or  refusal,  or  inability  of  the  vendor 
to  deliver  the  goods  at  the  agreed  time,2  such  vendee 
will  be  entitled  to  damages  therefor.3 

Demand  under  option  sale.  Under  a  contract  of  sale 
of  personal  property  to  be  delivered  at  the  option  of  the 
buyer  on  or  before  a  certain  date,  the  buyer  has  the 
right  to  demand  the  immediate  delivery  thereof  at  any 
time  up  to  that  date,  but  if  no  demand  is  made  until 
after  the  time  stipulated,  the  seller  is  entitled  to  a 
reasonable  time  after  demand  in  which  to  deliver.4 

Obligation  to  deliver  at  specified  time.  One  who 
sells  goods  to  be  delivered  at  a  certain  time,5  as 
bales  of  rags  by  prompt  steamer  or  sail  shipment,  is 
presumed  to  have  them  on  hand,  or  to  have  arranged 
to  carry  out  his  contract  ;6  and  he  cannot  excuse  him- 
self by  saying  that  he  expected  to  buy  the  goods,  but 
could  not.7  In  order  to  establish  a  waiver  of  an  obliga- 


§   231  DELIVERY.  332 

tion  to  deliver  at  a  time  specified,  there  must  be  shown 
either  such  acts  of  the  purchaser,  before  the  expiration 
of  the  time,  as  amount  to  an  estoppel,8  or  after  the  ex- 
piration of  the  time,  an  agreement  founded  on  a  new 
consideration.9 

"Forthwith,"  etc.  Whether  a  written  contract  of  sale 
expresses  the  time  of  delivery  or  not,  its  language  may 
yet  call  for  judicial  interpretation.10  Thus,  "  a  reason- 
able time  "  necessarily  involves  longer  delay  than  such 
expressions  as  "directly,"11  "forthwith,"12  or  "imme- 
diately," 13  especially  if  the  seller  might  have  performed 
according  to  his  promise,  or  else  used  means  in  his 
power  to  get  his  contract  modified.14 

"  As  soon  as  possible."  A  contract  to  deliver  goods  "  as 
soon  as  possible,"  according  to  its  natural  import,  is  held 
to  refer  not  to  a  logical  possibility,  but  to  the  power  of 
the  seller  to  fulfill  the  stipulation  consistently  with  the 
proper  execution  of  his  prior  orders  ; 15  though  the  latest 
cases  impose  a  meaning  more  analogous  to  **  within  a 
reasonable  time." 16 

1  Story  on  Sales,  §310  ;  citing,  Hipwill  v.  Knight,  1  Younge  &  C. 
415  ;  Coslake  v.  Till,  1  Russ.  376  ;  Win* hurst  v.  Deeley,  2  Com.  B.  253  ; 
2  Story's  Eq.  Juris.  §  776,  and  cases  cited  ;  Pothier  Contrat  de  Vente, 
No.  49  a. 

2  Such  conduct  not  made  out  under  construction  given  to  con- 
tract :  Rhodes  v.  Cleveland  Boiling  Mill  Co.  17  Fed.  Rep.  426. 

3  See  Story  on  Sales,  §  310. 

4  Holt  v.  Brown,  63  Iowa,  319,  323  ;  citing,  2  Parsons  on  Contracts, 

250. 

5  No  certain  or  definite  time  fixed  :  Rhodes  v.  Cleveland  Rolling 
Mill  Co.  17  Fed.  Rep.  426. 

6  See  New  Haven  etc.  R.  R.  v.  Quintard,  31  N.  Y.  Sup.  Ct.  89. 

7  Phillips  v.  Taylor,  49  N.  Y.  Sup.  Ct.  318,  321. 

8  See  citations  in  next  note. 

9  Phillips  v.  Taylor.  49  N.  Y.  Sup.  Ct.  318  ;  citing,  Hill  v.  Blake,  4S 
N.  Y.  Sup.  Ct.  253.    And  referring,  also,  to  Brown  v.  Bo  wen,  I'O  N.  Y. 
541,  and  Underwood  r.  Farmers'  etc.  Ins.  Co.  57  N.  Y.  306.    Compare 
Davis  v.  Budd,  60  Iowa,  144 ;  Hill  v.  Blake,  97  N,  Y.  216. 

10  2  Schouler  on  Personal  Property,  \  386. 

11  See  Duncan  v.  Tophani,  8  Com,  B.  225. 


333  DELIVERY.  §   232 

12  See  Stanton  v.  Wood,  16  Q.  B.  638 ;  Roberts  ?>.  Brett,  11  H.  L.  Gas. 
337  ;  34  Law  J.  Com.  P.  241 ;  Campbell  on  Sales,  279. 

13  See  citations  in  next  note.    "  As  soon  as  possible,"  construed  : 
Rhodes  ?'.  Cleveland  Rolling  Mill  Co.  17  Fed.  Hep.  426, 431.    And  see 
next  subdivision  of  section. 

14  See  Duncan  v.  Topham,  8  Com.  B.  225;  Rommell  v.  Wing-ate, 
103  Muss.  3:7  ;  Roberts  v.  Brett,  11  H.  L.  Cus.  3;!7 ;  Isaacs  v.  Plaster 
Works.  G7  N.  Y.  1-4  ;  so  cited,  2  Schouler  on  Personal  Property,  f  386. 
And  consult   Bennett's    Benjamin    on  Sales,  \  687.    But    compare 
Stainton  v.  Wood,  16  Q.  B.  608  ( "  forthwith  ").    And  see  Neldon  v. 
Smith,  36  N.  J.  JU  148  ("  immediate  delivery  "). 

15  Atwood  v.  Emery,  1  Com.  B.  N.  S.  110.    And  see  Campbell  on 
Sales,  279. 

16  Hydraulic  Engineering  Co.  v.  McHaffie,  Law  R.  4  Q.  B.  D.  670  ; 
2 J  Eng.  Rep.  102  ;  Pope  v.  Filley,  3  McCrary,  190  ;  2  Schouler  on  Per- 
sonal Property,  §  386.    And  consult  Bennett's  Benjamin  on  Sales, 
2  687 ;  Khodes  v.  Cleveland  Boiling  Mill  Co.  17  Fed.  Bep.  426. 

I  232.  Reasonable  timo.  —  When  no  time  set  for  deliv- 
ery. In  the  absence  of  evidence  to  the  contrary,  the 
law  supposes  a  reasonable  time  for  delivery,  which  is 
the  exact  standard  of  diligence  whether  the  seller  or 
buyer  is  to  take  the  initiative,  unless  a  definite  time  is 
set,  when  it  is  of  the  essence  of  the  contract  between  the 
parties.1 

Determination  of.  What  is  a  "reasonable  time "  will 
depend  upon  the  circumstances,2  and  is  determined  by 
deducing  the  real  meaning  of  the  parties  from  their 
uncertain  expressions.3 

Parol  evidence  concerning.  When  a  written  contract 
of  sale  says  nothing  as  to  time,  it  may  bo  shown  by 
parol  evidence4  of  the  facts  and  circumstances  attend- 
ing the  transaction,5  what  the  parties  thought  was  a 
reasonable  time  for  delivery.6 

Circumstances  of  contract.  The  question  of  a  reason- 
able time  is  determined  by  a  view  of  all  the  circum- 
stances of  the  case,  by  placing  the  court  and  jury  in 
the  same  situation  as  the  contracting  parties  were  at 
the  time  they  made  the  contract ;  that  is,  by  placing  be- 
fore them  all  the  circumstances  known  to  both  parties 
at  the  time.7  And  for  that  purpose  it  has  been  held 


§   233  DELIVERY.  334 

that  evidence  of  the  conversations  of  the  parties  may  be 
admitted  to  show  the  circumstances  under  which  the 
contract  was  made,  and  what  they  thought  was  a  rea- 
sonable time.8 

1  2  Schouler  on  Personal  Property,  §  SSfi  ;  citing,  Higgins;  i».  Dela- 
ware etc.  11.  R.  60  ]\T.  Y.  553  ;  Bolton  v.  Kiddle,  35  Mich.  i:{ ;  Kellam  v. 
McKinstry,  69  N.  Y.  264.    And  consult  2  Corbin's  Benjamin  oa  Sales. 
3  1023,  n.  1L 

2  Reasonable  time  in  general :  2  Bouvier  Law  Diet.  (14th  ed.) 
415;   Winfield's  Words  etc.  51<J;   quoting,  Goodwin    v.  Creveley,  4 
Hurl.  &  N.  6o3  ;  Jackson  v.  Saunders,  1  Schoales  &  L.  461 ;  Graham 
v.  Van  Dieman's  Land  Co.  30  Eng.  L.  &  Eq.  573. 

3  See  2  Schouler  on  Personal  Property,  f  336. 

4  Admifisibility  of  parol  evidence  in  general:    1  Greenleaf  ou 
Evidence  (llth.  ed.),  \\  275-S05. 

5  See  Bennett's  Benjamin  on  Sales,  fc  683 ;  stating,  Ellis  r.  Thomp- 
son, 3  Mees.  <fc  W.  445. 

6  2  Schouler  on  Personal  Property*  \  386.    But  it  cannot  bo  thus 
shown  that  any  specific  time  was  agreed  upon,  for  this  would  be  to 
supersede  the  written  instrument ;  nor  does  reasonable  time  neces- 
sariljr  mean  the  time  usually  taken  by  other  parties  to  perform  a 
similar  act:  2  Schouler  on  Personal  Property,  \  386  ;  citing»Ford  V. 
Cotesworth,  Law  R.  7  Q.  B.  127;  Cocker  v.  Franklin  etc.  Co.  3  Sum. 
530 ;  Atwood  v.  Cobb,  16  Pick.  227. 

7  Roberts  v.  Mazeppa  Mill  Co.  SO  Minn.  413,  415,  416 ;  citing,  Ellis  i\ 
Thompson,  3  Mees.  <fe  W.  445  ;  Cocker  v.  Franklin  H.  &  F.  Manuf.  Co. 
3  Sum.  530. 

8  See  Cocker  v.  Franklin  H.  <fe  F.  Manuf.  Co.  3  Mees.  &  W.  445  ; 
Coates  v.  Sangston,  5  Md.  121 ;  as  cited  in  support  of  proposition  in 
Roberts  v.  Mazeppa  Mill  Co.  30  Minn.  413,  410,  holding  question  of 
reasonable  time  as  one  for  jury,  under  rule  laid  down  in  Cochran  v. 
Toher,  14  Minn.  203  (385)  j  Defosia  v.  Winona  &  St.  Peter  R.  Co.  18, 
Minn.  119  (133) ;  Pinney  v.  First  Div.  etc.  11.  Co.  19  Minn.  211  (251). 

g  233.  Divisions  of  time.  — "  Month."  The  word 
"month"1  generally  means  a  lunar  month;2  but  in 
mercantile  contracts  it  commonly  means  a  calendar 
month;3  and  in  England,  such  is  the  interpretation 
both  by  commercial  usage4  and  by  statute.5 

"Days."  Where  a  certain  number  of  "days"  is  to 
bo  allowed  for  the  delivery,6  they  are  to  be  counted  as 
consecutive  days,  and  include  Sundays,  unless  the  con- 
trary be  expressed,7  or  an  usage  to  that  effect  be  snown.8 

Hour  of  last  day.  In  regard  to  the  hour  of  the  last 
day  which  the  law  sets  as  the  final  limit  for  punctual 
delivery,9  a  tender  in  the  evening,  giving  time  for 


335  DELIVERY.  \   234 

examination,  etc.,  before  midnight  has  been  sustained 
as  not  unreasonably  late;10  but  when  daylight  is  re- 
quired for  the  proper  examination  and  assortment  of 
the  thing  tendered,  it  is  said  that  there  can  be  but  little 
doubt  that  time  should  be  given  for  such  examination 
before  sunset  and  by  daylight.11 

1  Judicial  interpretations  of  word  collected :  2  Abbott's  Law  Diet. 
123, 124. 

2  See  2  Bouvier  Law  Diet.  (14th  ed.)  195 ;  Winfield's  Words  etc. 
403  ;  quoting,  Hives  v.  Guthrie,  1  Jones  (N.  C.)  87. 

3  1  Bouvier's  Law  Diet.  (14th  ed.)  195.    And  see  2  Sehouler  on  Per- 
sonal Property,  |  380;  citing,  Churchill  v.  Merchants'  Bank,  19  Pick.  532. 

4  See  Beg.  v.  Chawton.  1  Q.  B.  247,  250 :  Webb  v.  Fairmaner,  3 
Mees.  &  W.  473. 

5  Stats.  13  Viet.  ch.  21,  §4.    See  Campbell  on  Sales,  279.    Consult 
further,  2  Abbott's  Law  Diet.  123. 

6  Day  in  general:  Winfield's  Words  etc.  172  ;  quoting,  Helplen- 
Strue  v.  Vincennes  Nat.  Bank,  65  Ind.  58!);  Haines  v.  .State,  7  Tex. 
App.  33  ;  People  v.  Hatch,  33  111.  137 ;  Pulling  v.  People,  8  Barb.  385. 

7  Brown  v.  Johnson,  10  Mees.  &  W.  331. 

8  Cochran  v.  Retberg,  3  Esp.  121 ;  Bennett's  Benjamin  on  Sales 
$684. 

9  It  is  enacted  in  California  that  the  delivery  of  a  thing  sold  can 
be  offered  or  demanded  only  within  reasonable  hours  of  the  day : 
Cal.  Civ.  Code,  §  1758. 

10    Startup  v.  McDonald,  6  Man.  &  Q.  593.    See  Campbell  on  Sales, 
278  ;  Bennett's  Benjamin  on  Sales,  §2  685,  686  ;  Story  on  Sales,  §  310. 


reconciling  Berry  v.  Noll,  54  Ala.  446,  454. 

I  234.  Computation  of  time. — Days  excluded.  As  to 
the  computation  of  time  in  general,1  the  modern  rule, 
which  has  a  general  legal  application,  excludes  the  day 
from  which  computation  begins,  as  well  as  any  day  ex- 
pressly set  as  a  final  limit  under  such  expressions  as 
''until,"  "up  to,"  or  "between."2  Thus  an  undertak- 
ing to  deliver  "  in  three  months  from  April  2d,"  would 
give  the  seller  July  2d  as  his  last  day  of  delivery  ;3  but 
his  promise  to  deliver  "  between  April  2d  and  July  2d,"* 
or  at  any  time  "  until  July  2d,"5  will  oblige  him  to  de- 
liver by  July  1st.6 


g  235  DELIVERY.  336 

"  7W  It  is  not  positively  settled  whether  "  to  "  shall 
be  taken  as  a  word  of  like  exclusive  force;7  but  the 
better  opinion  is  that  it  has  sometimes  the  inclusive  and 
sometimes  the  exclusive  sense,  and  inclines  to  give  the 
benefit  of  the  doubt  to  the  party  charged  in  the  trans- 
action with  the  duty  of  performance.8 

"  On,"  etc.  A  promise  to  deliver  "  on  or  before  "  such  a 
day  is  held  in  some  of  the  United  States  to  give  the  seller 
the  whole  of  that  day  to  make  delivery  ;9  but  whether 
"  on  "  shall  be  taken  as  a  word  of  exclusive  or  inclusive 
force  is  still  a  matter  of  controversy  in  England.10 

1  See  2  Bouvier  Law  Diet.  (14th  ed.)  595.    And  consult  1  Abbott's 
Law  Diet.  339,  very  futly  discussing  subject. 

2  2  Schouler  on  Personal  Property,  \  386. 

3  See  Webb  v.  Fairmaner,  3  Mees.  &  W.  473  ;  Campbell  on  Sales, 
278. 

4  Compare  Cleveland  v.  Sterrett,  70  Pa.  St.  204  ;  approved  in 
Coniwingo  Petrolum  Co.  v.  Cunningham,  75  Pa.  St.  138. 

5  See  People  v.  Walker,  17  N.  Y.  502.    But  compare  Hough  wort  v. 
Boisaubin,  18  IST.  J.  Eq.  315. 

6  2  Schouler  on  Personal  Property,  §  386  ;  citing,  Farwell  v.  Rogers, 
4  Cush.  460 ;  Atkins  v.  Boylston  etc.  Ins.  Co.  5  Met.  440 ;  People  v. 
Walker,  17  N.  Y.  502  ;  Newby  v.  Rogers,  40  Ind.  9  ;  Pease  v.  Norton, 
6  Greenl.  229.    And  consult  Bennett's  Benjamin  on  Sales,  §  684,  n.  I ; 
2  Corbin's  Benjamin  on  Sales,  \  1024,  n.  15. 

7  See  citations  in  next  note.    "  To  "  in  general :  2  Abbott's  Law 
Diet.  569. 

8  See  Coniwingo  Co.  v.  Cunningham,  75  Pa.  St.  138,  quoted  in 
support  of  text  in  2  Schouler  on  Personal  Property,  §  386. 

9  Adams  v.  Dale,  29  Ind.  273.     "On  or  before,"  in  general:  2 
Abbott's  Law  Diet.  209. 

10  See  Coddington  v.  Paleologo,  Law  R.  2  Ex.  193  ;  2  Schouler  on 
Personal  Property,  \  386. 

§235.  Quantity  delivered.  —  Excessive  quantity.  How 
much  shall  be  delivered  depends  upon  the  terms  of 
the  contract,  the  rule  being  that  the  seller  must  deliver 
just  what  he  has  bargained  to  deliver,1  no  more  and  no 
less.2  He  has  no  right  to  mix  the  goods  ordered  with 
others  not  ordered,  and  so  put  the  buyer  to  the  alterna- 
tive of  taking  the  whole,  and  selecting  his  portion;3 
nor  in  general  to  deliver  a  quantity  in  excess 4  of  that 
ordered.5 


DELIVERY.  §   236 

Less  than  stipulated  quantity.  The  delivery  of  a  less 
quantity  than  that  bargained  for 6  is  still  a  greater  breach 
of  duty  by  the  seller,  since  110  such  simple  act  as  separa- 
tion could  put  the  parties  where  they  agreed  to  stand.7 
And  where  less  than  the  quantity  sold  is  delivered,  the 
buyer  may  refuse  to  accept,8  on  the  ground  of  the 
seller's  non-performance  of  a  condition  precedent;9 
though  if  he  really  accepts  part  as  a  substantial  per- 
formance of  the  contract,  he  renders  himself  accountable 
for  its  value.10 

1    See  succeeding  citations  in  section. 


2  Bos.  &P.  N.R.  61. 

3  See  Levy  v.  Green,  8  El.  &  B.  575  (crockery-ware  packed  in  crate 
with  that  of  a  different  pattern).    Compare  Nicholson  r.  Bradfield 
Union,  Law  R.  1  Q.  B.  620  ;  Iron  Cliffs  Co.  v.  Buhl,  24  Mich.  86. 

4  See  Cunliffe  v.  Harrison,  6  Ex.  903  (fifteen  instead  of  ten  hogs- 
heads of  wine). 

5  See  Dixon  v.  Fletcher,  3  Mees.  <fe  W.  146  ;  Hart  v.  Mills.  15  Mees. 
<fc  W.  85;  Cunliffe  v.  Harrison,  9  Ex.  903;  Langdell's  Cases  on  Sales, 
844  ;  Nicholson  v.  Bradfield  Union,  Law  K.  1  Q.  B.  620  ;  Reuter  v.  Sala, 
Law  R.  4  C.  P.  D.  239  ;  Rommell  v.  Wingate,  103  Mass.  327  ;  Croriinger 
?;.  Crocker,  62  N.  Y.  151  ;  Chandler  v.  De  Graff,  27  Minn.  208  :  so  cited, 
2  Schouler  on  Personal  Property,  §  388.    And  consult  Bennett's  Benja- 
min on  Sales,  \  6S9  ;  2  Corbin's  Benjamin  on  Sales,  §  1030,  n.  17,  stat- 
ing and  illustrating  distinction  said  to  be  made  in  American  cuses. 

6  See  succeeding  portions  of  section. 

7  2  Schouler  on  Personal  Property,  §  388. 

8  See  citations  in  next  note. 

9  See  Morgan  v.  Gath,  3  Hurl.  &  C.  748;  Waddington  v.  Oliver,  2 
Bos.  <fe  P.  N.  R.  61 ;  Oxendale  v.  Wetherell,  9  Barn.  &  C.  386  ;  Rook- 
ford  etc.  R.  R.  Co.  v.  Lent,  63  111.  288  ;  Wright  v.  Barries,  14  Conn.  518  ; 
Smith  v.  Lewis,  40  Ind.  98  ;  Marland  v.  Stanwood,  101  Mass.  470. 

10  See  Oxendale  v.  Wetherell,  9  Barn.  &  C.  386  ;  Haines  7'.  Tucker, 
50  N.  H.  307  ;  2  Schouler  on  Personal  Property,  ?  388,  whence  para- 
graph derived.  And  consult  Bennett's  Benjamin  on  Sales,  §6'JO;  2 
Corbin's  Benjamin  on  Sales,  §  1032,  notes  18, 19. 

\  236.  Contract  for  indefinite  quantity.  —  Construction 
favorable  to  seller.  Where  the  contract  itself  permits  of 
some  latitude  of  construction  as  to  the  quantity  which 
the  seller  is  to  furnish,1  the  courts,  under  the  doctrine 
favoring  substantial  compliance  with  the  contract  rather 
NEWMAKK  SALES. —  29. 


§   237  DELIVERY.  338 

than  literal  fulfillment,  will  avail  themselves  of  the 
opportunity  to  give  the  seller  a  fair  margin,  so  far  as 
this  may  be  done  without  detriment  to  the  buyer.2 

Words  of  estimate  and  expectation.  And  such  ex- 
pressions as  "  more  or  less," 3  "  about," 4  and  the  cautious 
words  "say  about,"5  are  words  of  estimate  and  ex- 
pectation only,6  which  mark  the  seller's  purpose  not  to 
bind  himself  to  any  precise  quantity,  but  merely  to  keep 
reasonably  close  to  the  amount  named.7  But  the  full 
import  of  such  expressions  is  often  a  matter  of  great 
doubt,  where  no  criterion  of  quantity  can  be  gathered 
from  other  parts  of  the  contract  to  which  the  estimate 
relates.8 

1  See  succeeding  portions  of  section. 

2  2  Schouler  on  Personal  Property,  \  389. 

3  See  Cross  v.  Eglin,  2  Barn.  &  Adol.  106  ;  Cockerell  ?>.  Aucompte, 
2  Com.  B.  N.  S.  440  ;  26  Law  J.  Com.  P.  194  ;  Creighton  v.  Comstock, 
27  Ohio  St.  548  ;  Holland  v.  Rea,  48  Mich.  218  ;  Day  v.  Cross,  59  Tex.  595, 
604,  605. 

4  See  Bourne  v.  Seymour,  16  Com.  B.  337  ;  Moore  r.  Campbell,  10 
Ex.  323;  23  Law  J.  Ex.  310  ;  Pembroke  Iron  Co.  v.  Parsons.  5  Gray, 
589 ;  McLay  v.  Perry,  44  L.  T.  X.  S.  152  ;  Clapp  v.  Thayer,  112  Mass.  296. 

5  See  McConnell  r.  Murphy,  Law  R.  5  P.  C.  203  ;  8  Eng.  Rep.  164  ; 
Morris  v.  Levison,  Law  R.  1  C.  P.  D.  155. 

6  Rules  of  construction  concerning  such  expressions :  Brawley 
v.  United  States,  6  Otto,  168,  171 ;  quoted,  Day  v.  Cross,  59  Tex.  595, 
p.  604. 

7  2  Schouler  on  Personal  Property,  ?  389 ;   citing,  McConnell  v. 
Murphy.  Law  R.  5  P.  C.  203;  8  Eng.  Rep.  164  ("say  about  six  hun- 
dred spars");  Cross  v.  Eglin,  2  Barn.  &  Adol.  106;  Moore?'.  Camp- 
bell, 10  Ex.  323  ;  Pembroke  Iron  Co.  v.  Parsons,  5  Gray,  589  ;  Shepard  , 


M691,  692  ;  2  Corbin's  Benjamin  on  Sales,  ?  1039  n.  22  ;  Day  v.  Cross, 
Tex.  595,  604,  605 ;  Holland  v.  Rea,  48  Mich.  218,  221. 
8    See  Bourne  v.  Seymour,  16  Com.  B.  337  ;  Robinson  v.  Noble,  8 
Peters,  181 ;  so  cited,  2  Schouler  on  Personal  Property,  ?  3S!>.     And 
consult  Brawley  v.  United  States,  6  Otto,  168    171.    Construction  of 
order  for    "a  small    cargo"    of    wood,  "in  all    about  sixty  cubic 
fathoms  " :  Kreuger  v.  Blanck,  Law  R.  5  Ex.  179. 

§  237.  Partial  delivery,  —  Under  entire  contract.  If 
only  a  portion  under  an  entire  contract  is  seasonably 
delivered,  the  buyer  may  refuse  to  receive  the  residue  ; l 


339  DELIVERY.  §   237 

but  until  the  period  of  delivery  has  elapsed  the  seller 
has  the  opportunity  of  remedying  errors  and  making 
up  a  deficiency;2  and  in  the  mean  while  the  buyer  is 
not  put  to  his  election  between  returning  the  portion  de- 
livered on  the  ground  of  non-performance,  and  keeping 
it  to  be  paid  for.3  Where  the  plaintiff  contracted  to  sell 
and  deliver  six  hundred  and  ninety-nine  boxes  of  glass 
to  defendant,  delivery  to  be  made  at  one  time,  but  prior 
to  any  delivery  the  defendant  wrote  to  plaintiff  asking 
for  immediate  delivery  of  a  small  portion,  whereupon 
plaintiff  delivered  three  hundred  and  sixty-five  boxes, 
which  the  defendant  received  and  used,  afterwards 
writing  that  he  wished  the  order  completed  in  a  reason- 
able time,  and  a  correspondence  ensuing  as  to  the  terms 
of  the  agreement,  the  plaintiff  subsequently  offered  to 
complete,  but  defendant  declined  on  the  ground  that 
the  time  had  elapsed,  it  was  held  that  the  plaintiff  could 
recover  for  the  amount  delivered.4 

Parcels  deliverable  from  time  to  time.  So  if  the  con- 
tract was  for  a  certain  quantity  to  be  delivered  in  parcels 
from  time  to  time,  the  parcels  first  delivered  may  be  re- 
turned if  the  seller  fails  to  deliver  the  latter  parcels  as 
promised  ; 5  for  when  the  period  of  delivery  has  elapsed 
it  may  be  asked  whether  the  total  amount  contracted 
for  is  already  delivered.6 

1  See  Wilson  v.  Wagar,  26  Mich.  452.    Retaining  part  delivered  : 
See  Reed  v.  Randall,  29  N.  Y.  35S  ;  86  Am.  Dec.  305,  311. 

2  2  Schouler  on    Personal   Property,  $  388,  whence   paragraph 
derived. 

3  Compare  Waddington  v.  Oliver,  2  Bos.  &  P.  N.  R,  61 ;  Oxendale 
v.  Wetherell,  9  Burn.  &  C.  386. 

4  Avery  v.  Wilson,  81  N.  Y.  341 ;  37  Am.  Rep.  503. 

5  See  citations  in  next  note. 

6  2  Schouler  on  Personal  Property,  $  388  ;  relying  upon  Oxendale 
v.  Wetherell,  9  Barn.  &  C.  386  ;  Haines  v.  Tucker,  50  N.  H.  307.    And 
see  Catlin  v.  Tobias,  26  N.  Y.  217  ;  84  Am.  Dec.  183.    Acceptance  of  part 
delivery  under  entire  and  severable  contracts,  with  consideration  of 
modern  American  rule:  2  Corbin's  Benjamin  on  Sales,  $  10,72,  n.  U. 
And  consult  Avery  v.  Wilson,  81  N.  Y.  341 ;  37  Am.  Rep,  503, 


I  238  DELIVERY.  340 

g  238,  Delivery  by  instalments,  —  Modification  of  con- 
tract. A  contract  which  provides  for  delivery  by  in- 
stalments *•  may  become  inextricably  complicated  under 
the  postponement  from  time  to  time  of  full  periodical 
performance  with  the  buyer's  assent,  and  the  substitu- 
tion of  new  terms  by  mutual  assent ; 2  but  whatever  the 
modifications  of  a  contract  not  rescinded,  the  seller 
still  remains  bound  to  make  delivery  at  some  reason- 
able time,  and  hence  cannot  rightfully  refuse  perform- 
ance altogether.3 

Need  of  payment.  It  has  been  held  that  the  purchaser 
of  goods  to  be  delivered  in  instalments,  and  to  be  paid 
for  as  delivered,  cannot  claim  further  deliveries  with- 
out paying  for  the  part  which  has  been  delivered,  and 
therefore  he  cannot  require  the  tender  of  any  more  of 
them  by  the  vendor  without  doing  so.4 

Entire  or  severable  contract.  But  a  partial  delivery 
of  goods  under  an  entire  contract,  even  though  delivery 
of  the  residue  has  been  rendered  impossible  under  cir- 
cumstances which  exempt  the  seller  from  full  perform- 
ance, will  not,  apart  from  a  waiver  on  the  buyer's  part, 
enable  him  to  enforce  part  performance  against  the 
buyer;5  though  it  is  a  matter  of  construction  whether 
a  given  contract  shall  be  deemed  an  entire  one  with 
partial  deliveries,  or  as  providing  for  a  separate  sale  of 
each  lot.6 

1  See  generally  Mersey  Steel  etc.  Co.  r.  Naylor,  Law  K.  9  A  pp. 
Cas.  484  ;  36  Eng.  Rep.  164  ;  Honck  r.  Muller,  Law  R.  7  Q.  B.  D.  92 ;  36 
Eng.  Rep.  264  ;  Norrington  v.  Wright,  115  U.  S.  188;  6  Sup.  Ct.  Rep. 
12 ;  Blackburn  v.  Reilly,  47  N.  J.  L.  290 ;  54  Am.  Rep.  159  ;  Gill  r.  Ben- 
jamin, 64  Wis.  362 ;  54  Am.  Rep.  619  ;  Johnson  v.  Allen,  78  Ala.  387  ;  56 
Am.  Rep.  34. 

2  2  Schouler  on  Personal  Property,  §  390.    And  see  Davis  v,  Budd, 
60  Iowa,  144  ;  Hill  v.  Blake,  97  N.  Y.  216. 

3  Tyers  v.  Rosedale  etc.  Iron  Co.  Law  R.  10  Ex.  195,  reversing 
S.  C.  Law  R.  8  Ex.  305  ;  as  cited,  2  Schouler  on  Personal  Property, 
§  390 ;  referring,  also,  to  Ireland  v.  Livingston.  Law  R.  5  H.  L.  395;  Nel- 
don  v.  Smith,  36  N.  J.  L.  14S  ;  O'Neill  v.  James,  43  N.  Y.  84  ;  Berg- 
heim  ?'.  Iron  Co.  Law  R.  10  Q.  B.  319.    Contract  silent  as  to  quantity 
to  be  delivered  of  each  of  various  kinds  ^numerated,  or  at  each  of 
certain  fixed  periods  :  Metz  v.  Albrecht,  52  III.  491. 


341  DELIVERY.  \  239 

4  Walton  v.  Black,  4  Houst.  149.    Instalment  deliveries  consid- 
ered :  Bennett's  Benjamin  on  Sales,  gg  598,  593  «;  2  Corbin's  Benja- 
min on   Sales,  §  909,  n.  26 ;    Campbell  on    Sales,  281-295.    And   see 
authorities  cited  in  note  at  beginning  of  section. 

5  See  Klein  v.  Tupper,  52  N.  Y.  550. 

6  See  Verkamp  v.  Hurlburd  Co.  58  Cal.  229 ;  41  Am.  Rpp.  2fio  ; 
Gardner  v.  Clark,  21  N.  Y.  39!) ;  Couston  v.  Chapman,  Law  K.  2  II.  L.  S. 
App.  250 ;  3  Eng.  Rep.  187  ;  2  Schouler  on  Personal  Property,  §  890, 
whence  paragraph  derived.    Compare  \  237,  011  PARTIAL,  DELIVEIIY. 

§239.  Mode  of  making, —  Unspecified  and  specified 
chattels.  The  mode  of  making  delivery  involves  in  the 
case  of  unspecified  chattels  the  idea  of  such  acts  as  sep- 
aration, selection,  and  setting  apart  for  the  buyer;1 
while  in  the  case  of  specific  chattels,  the  extent  of  the 
seller's  duty  depends  upon  such  circumstances  as  the 
character  and  situation  of  the  property,2  and  the  nature 
of  the  agreement  between  the  parties,  whereby  the 
seller  is  either  to  merely  let  the  buyer  take  the  goods,3 
or  is  to  forward  them  to  the  latter.4 

Tender  of  thing  sold.  A  mere  offer  to  deliver  does 
not  constitute  a  sufficient  compliance  with  the  seller's 
engagement  to  deliver,  but  there  must  be  either  actual 
or  constructive  delivery,5  and  at  least  an  actual  tender6 
of  the  thing.7 

Ponderous  articles.  Where  goods,  however,  are  pon- 
derous and  incapable  of  being  handed  over  from  one  to 
another,  there  need  not  be  an  actual  delivery,  but  it 
may  be  done  "by  that  which  is  tantamount,  such  as  the 
delivery  of  the  key  of  a  warehouse  in  which  the  goods 
are  lodged,  or  the  delivery  of  other  indicia  of  property.8 

Symbolical  or  constructive  delivery.  And  this  doctrine 
of  symbolical  or  constructive  delivery9  applies  not  only 
where  the  goods  are  ponderous  or  bulky,  or  cannot 
conveniently  be  delivered  manually,  but  also  where 
they  are  not  in  the  personal  custody  of  the  seller,  and 
are  put  into  the  absolute  power  and  subject  to  the 
authority  of  the  buyer.10 


§   239  DELIVERY.  342 

Goods  in  buyer's  possession.  If  the  thing  sold  be 
already  in  the  buyer's  possession  and  control,  the  prop- 
erty will  pass  without  any  formal  act  of  delivery,11  if 
the  circumstances  and  subsequent  conduct  of  the  par- 
ties are  consistent  with  such  mutual  intention.12 

1  See  §  103,  on  SELECTION  AND  SEPARATION.    And  consult  note 
to  Walden  v.  Murdock,  83  Am.  Dec.  142. 

2  See  Hayden  v.  Demets,  53  N.  Y.  426.    Delivery  of  cattle  run- 
ning at  large  :  See  Walden  v.  Murdock, 23 CaL  540  ;  S3  Am.  Dec.  135,  n. 
142  ;  Bennett's  Benjamin  on  Sales,  §  696,  n.  6;  2  Kent  Com.  500;  Hall 
v.  Richardson,  16  Md.  397  ;  77  Am.  Dec.  303,  307. 

3  See  \  228,  on  DUTY  TO  DELIVER. 

4  See  2  Kent  Com.  490,  500  ;  1  Schouler  on  Personal  Property, 
II  87,  88 ;  2  Schouler  on  Personal  Property,  §  391  (basis  of  paragraph). 
The  law  requires  good  faith,  and  such  acts  only  as  are  practicable 
according  to  the  character  of  the  thing  tendered  and  the  nature  of 
the  business :   Hayden  v.  Demets,  53  N.  Y.  426.    Delivery  subject  to 
inspection :   McLennan  t'.  McDermid,  50  Mich.  370.    Delivery  "  ex  ves- 
sel ":  Cunningham  v.  Judson,  100  N.  Y.  179 :  2  N.  E.  Rep.  915.    Delivery 
at  one  time  and  in  one  lot  not  required  :  Roberts  ?'.  Mazeppa  Mill  Co. 
30  Minn.  413,  415. 

5  See  on  these  kinds  of  delivery,  Bolin  v.  Huffn aerie,  1  Rawle,  9, 
19 ;  Brown  v.  Volkening,  64  N.  Y.  80*;  Winfield's  Words  etc.  17,  139  ;  1 
Abbott's  Law  Diet.  360;   §  222,  on  ACTUAL  AND   CONSTRUCTIVE 
DELIVERY. 

6  Tender  in  general :  2  Bouvier  Law  Diet,  (14th  ed.)  581.    Suffi- 
ciency of  tender  of  goods  sold  :  Hayden  v.  Demets,  53  N.  Y.  426  ;  Van 
Sickle  v.  Xester,  34  Hun,  64. 

7  See  Webber  r.  Minor,  6  Bush,  463 ;  as  cited,  2  Schouler  on  Per- 
sonal Property,  g  391.    Further  tender  dispensed  with  :   Van  Sickle  r. 
Nester,  34  Hun,  64.    Tender  by  wagon-loads  and  from  day  to  day 
sustained:  Van  Sickle  v.  Nester,  34  Hun,  64.    Tender  of  manufac- 
tured article:  See  Smith  v.  Wheeler,  7  Or.  49  ;  33  Am.  Rep.  698. 

8  Chaplin  v.  Rogers,  1  East,  696  ;  Langdell's  Cases  on  Sales,  97. 
And  see  Ellis  r.  Hunt,  3  Term  Rep.  464  ;  Ross'  Leading  Cases,  153  ; 
Bennett's  Benjamin  on  Sales,  \  696;  Story  on  Sales,  §  311 ;  1  Schouler 
on  Personal  Property,  ?§  87,  88  ;  2  Schouler  on  Personal  Property, 
$  391 ;  citing,  also,  2  Kent  Com.  499, 500,  and  Thompson  v.  Baltimore  etc. 
R.  2S  Md.  396.    Consult  Hall  r.  Richardson,  16  Md.  307  ;  77  Am.  Dec. 
303,  307  ;  Van  Brunt  v.  Pike,  4  Gill,  270 ;  45  Am.  Dec.  126,  128. 

9  See  1  Bouvier  Law  Diet.  tit.  Delivery  (14th  ed.)  452. 

10  See  Story  on  Sales,  §  311 ;  2  Schouler  on  Personal  Property, 
§391.    Delivery  of  the  brass  knobs  worn  by  oxen  not  presumably  a 
symbolical  delivery  of  the  oxen  themselves  :  Clark  v.  Draper,  19 
N.  H.  419. 

11  See  Story  on  Sales,  §  312  a  ;  Griffin  v.  Wright,  1  Tex.  App.  (Civ. 
Cas.)  \  638. 

12  See  Warden  v.  Marshall,  99  Mass.  305  ;  Lake  r.  Morris,  30  Conn. 
201  ;  Stowe  v.  Taft,  58  N.  H.  444,  as  cited  in  support  of  text  in  2 
Schouler  on  Personal  Property,  §  399.    And  consult  Griffin  v.  Wright, 
1  Tex.  App.  (Civ.  Cas.)  ft  638.     ' 


343  DELIVERY.  %  240-241 

\  240.  Symbolical  delivery.  —  In  general.  Symbolic 
delivery  is  the  delivery  of  some  thing  as  a  representa- 
tion or  sign  of  the  delivery  of  some  other.1  And  where 
an  actual  delivery  of  goods  cannot  be  made,2  a  sym- 
bolical delivery  of  some  particular  thing,3  as  a  half- 
penny, will  vest  the  property  equally  with  an  actual 
delivery.4 

Bills  of  sale  and  of  lading.  Transfers  of  a  ship  at  sea 
by  bill  of  sale,5  and  of  a  cargo  or  of  goods  in  transit,  or 
in  a  warehouse  by  delivery  of  the  bill  of  lading,6  are 
familiar  instances  of  symbolic  delivery.7 

Cumbrous  property.  And  a  symbolic  delivery  operat- 
ing by  force  of  the  making  of  a  present  contract  with- 
out any  further  formality,  is  held  sufficient8  to  pass 
possession  as  well  as  property,9  in  the  case  of  the  sale  of 
logs  floating  in  the  water,  or  other  cumbrous  property.10 

1  2  Bouvier  Law  Diet.  (14th  ed.)  575.    And  see  2  Abbott's  Law  Diet. 
533 ;  citing,  2  Blackst.  Com.  313-315 ;  1  Steph.  Com.  507,  508. 

2  Actual  delivery  defined :  Bolin  v.  Huffnagle,  1  Rawle,  9, 19  ;  1 
Abbott's  Law  Diet.  360.    And  see  Wlnfield's  Words  etc.  17  ;  quoting, 
Brown  v.  Volkening,  64  N.  Y.  80. 

3  See  2  Kent  Com.  500. 

4  2  Bouvier  Law  Diet.  (14th  ed.)  575 ;  citing,  Long  on  Sales,  575. 
Delivering  key  of  granary  :  Sharp  v.  Carroll,  27  N.  W.  Rep.  (Mich.) 
832.    Nailing  up  crib,  etc. :  Pope  v.  Cheney,  27  N.  W.  Hep.  (Iowa)  754. 

5  Bill  of  sale :  See  1  Bouvier  Law  Diet.  (14th  ed.)  207  ;  1  Abbott's 
Law  Diet.  149. 

6  Bill  of  lading :  See  under  chapter  on  DOCUMENTS  OF  TITLE. 
And  consult  Winfield's  Words  etc.  77,  78  ;  1  Abbott's  Law  Diet.  148. 

7  2  Corbin's  Benjamin  on  Sates,  §  1044,  n.  26  ;  referring  to  Conrad  v. 
Atlantic  Ins.  Co.  1  Peters,  445;  Gibson  v.  Stevens,  8  How.  384,  389; 
Prickett  v.  Bead,  31  Ark.  131 ;  King  v.  Jarman,  35  Ark.  190, 196  ;  Davis 
v.  Russell,  52  Cal.  611 ;  28  Am.  Rep.  647 ;  Russell  v.  O'Brien,  127  Mass. 
343.    And  see  1  Abbott's  Law  Diet.  360  ;  Story  on  Sales,  g  311. 

8  See  2  Kent  Com.  500. 

9  See  citations  in  next  note. 

10  See  Leonard  v.  Davis,  1  Black,  476,  482 ;  Hayden  v.  Demets,  53 
N.  Y.  42G ;  Buffer  v.  United  States,  15  Ct.  of  Cl.  291 ;  2  Corbin's  Benja- 
min on  Sales,  g  1044,  n.  26,  citing  these  cases  in  support  of  text,  and 
also  Tognini  v.  Kyle,  17  Nev.  209  ;  45  Am.  Rep.  442,  and  cases  cited. 

\  241.  Constructive  delivery.  —  In  general.  The  terms 
"constructive  delivery"  and  "symbolical  delivery J> 


I  241  DELIVERY.  344 

are  sometimes  used  as  synonymons.1  But,  strictly 
speaking,  constructive  delivery  includes  symbolical 
delivery,  and  also  all  those  acts  which  by  construction 
of  law  are  deemed  sufficient  to  transfer  the  possession.2 

Bailee  for  buyer.  And  a  delivery  may  take  place  by 
mere  arrangement  that  the  seller  or  a  third  person  hav- 
ing the  possession  shall  hold  as  bailee  for  the  buyer.8 

Order  on  borrower.  But  it  has  been  held  that  where 
the  owner  of  a  threshing  machine,  which  was  in  the 
possession  of  a  third  person,  to  whom  it  had  been 
loaned,  gave  the  purchaser,  who  executed  his  note  for 
the  price,  an  order  on  said  person  for  the* machine,  this 
did  not  constitute  a  delivery  of  the  article.4 

Of  part  for  whole.  There  may  be  a  constructive  de- 
livery of  part  for  the  whole,  where  the  goods  are  scat- 
tered about  in  various  places,  and  the  simultaneous 
delivery  of  each  part  is  impracticable.5 

Giving  opportunity  to  take  possession.  And  in  general, 
wherever  the  seller  has  not  expressly  bound  himself  to 
special  activity  in  placing  the  chattels  within  the  buyer's 
control  and  dominion,  he  will  have  performed  his  part 
by  giving  the  buyer  every  opportunity  to  take  posses- 
sion,6 which  the  nature  and  situation  of  the  property 
fairly  demand.7 

1  See  1  Abbott's  Law  Diet.  360. 

2  See  Bolin  v.  Huffnagle,  1  Bawle,  9, 19 ;  $  222,  on  ACTUAL  AND 
CONSTRUCTIVE  DELIVERY. 

3  See  Carpenter  v.  Graham,  42  Mich.  191;  Webster  v.  Anderson, 
42  Mich.  5o4  ;  Chapman  v.  Searle,  3  Pick.  38  ;  1  Corbin's  Benjamin  on 
Sales,  ??  174,  182;  2  Corbin's  Benjamin  on  Sales,  \  1044,  n.  26,  making 
these  citations  in  support  of  text. 

4  Edwards  v.  Meadows,  71  Ala.  42.    And  that  though  the  pur- 
chaser's permitting  tue  person  in  possession  to  use  the  machine  for  a 
definite  time,  as  a  matter  of  favor,  would  operate  as  a  waiver  of  deliv- 


ery, yet  a  more  submission  to  such  use  because  of  the  person's 
refusal  to  give  it  up  until  certain  work  was  done,  would  not  so 
operate :  Edwards  v.  Meadows,  71  Ala.  42. 

5  See  Pratt  v.  Chase,  40  Me.  269  ;  Phelps  v.  Cutler,  4  Gray,  131 ; 
Story  on  Sales,  §  311  a  ;  2  Schouler  on  Personal  Property,  §  393,  mak- 
ing those  citations  in  support  of  text.  And  consult  Campbell  on 
Sales,  347. 


DELIVEBY.  g   242 

6  See  Hayden  v.  Demets,  53  X.  Y.  426  ;  ?  228,  on  DUTY  TO  DELIVER. 

7  2  Schouler  on  Personal  Property,  §  393.    Constructive  delivery 
more  fully  discussed  :  Story  on  Sales.  g$  311  a,  312  &  ;  2  Kent  Com. 
500-503.    Waiver  of  objection  to  tender  or  otherwise  of  right  to  com- 
plete delivery  :  See  Hayden  v.  Demets,  53  N.  Y.  426  ;  Avery  v.  Will- 
son,  81  N.  Y.  341 ;  37  Am.  Rep.  503  ;  2  Schouler  on  Personal  Property, 
§  394;  referring,  also,  to- Alexander  ?».  Gardner,  1  Bing.  N.  C.  671  ;  Lang- 
dell's  Cases  on  Sales,  810  ;  Iron  Cliffs  Co.  v.  Buhl, 42  Mich.  86  ;  Knights 
v.  Wiffen,  Law  B.  5.  Q.  B.  660  ;  Langdell's  Cases  on  Sales,  766. 

I  242.  Delivery  of  bill  of  sale,  Qtc.  —  Bill  of  sale  of 
vessel  at  sea.  Among  the  indicia  of  title  which  the 
seller  may  deliver  or  tender  in  fulfillment  of  his  obliga- 
tion under  the  contract  is  the  bill  of  sale  of  a  vessel,1 
which  has  long  been  held  a  sufficient  symbolical  de- 
livery of  a  vessel  still  at  sea.2 

Sills  of  lading,  delivery  orders,  etc.  So  bills  of  lad- 
ing,3 and  various  instruments  in  the  nature  of  delivery 
orders  addressed  to  warehousemen  and  other  third 
parties  who  hold  possession  of  the  goods,4  will  suffice 
when  transferred  in  such  form  as  to  make  the  goods  in 
another's  custody  deliverable  to  the  buyer;5  and  the 
delivery  or  tender  of  such  documents  may  constitute 
such  a  sufficient  performance  on  the  seller's  part  as  to 
defeat  any  action  against  him  for  non-delivery  of  the 
goods;6  though  the  seller's  lien  for  non-payment,7  or 
right  of  stoppage  in  transitu,8  might  not  have  been 
extinguished.9 

Where  possession  of  goods  given.  But  wherever  de- 
livery of  possession  of  corporeal  chattels  is  given  in 
conformity  to  the  contract  of  sale,  a  bill  of  sale,  except 
as  to  vessels,  is  unnecessary,10  or  at  all  events,  serves 
merely  as  evidence  of  the  transfer,  in  connection,  it  may 
be,  with  a  receipt,  or  perhaps  notice  of  the  price ; u  though 
in  modern  practice  where  goods  are  put  on  water  or 
railway  transit,  a  bill  of  lading  is  to  be  delivered  or 
transferred 12  as  well  as  the  goods  themselves.13 

1  See  2  Kent  Com.  501 ;  1  Bouvier  Law  Diet.  (14th  ed.)  207. 

2  See  Atkinson  v.  Mailing,  2  Term  Rep.  43  ;  Gardner  v.  Howland, 
2  Tick.  602  ;  Story  on  Sales,  1 811 ;  1  Schouler  on  Personal  Property, 


§    243  DELIVERY.  346 

§  305  ;  2  Schouler  on  Personal  Property,  g  392,  making  these  citations 
in  support  of  text.  And  consult  Bennett's  Benjamin  on  Sales,  g  696, 
u.  c. 

3  See  I  243,  on  DELIVERY  OP  BILLS  OF  LADING. 

4  See  chapter  on  DOCUMENTS  OF  TITLE. 

5  2  Schouler  on  Personal  Property,  \  392. 

6  See  Suiter  ?».  Woollams,  2  Man.  &  G.  650 ;  Wood  ?'.  Manley,  11 
A3.  &  E.  34;  First  Nat.  Bank  v.  Dearborn.  115  Mass.  219;  Davis  v. 
Jones,  3  Houst.  68  ;  Hayden  v.  Demets,  5:5  N.  Y.  4J6  ;  Russell  r.  Car- 
rington,  42  N.  Y.  118 ;  1  Am.  Hep.  498  ;  Gibson  v.  Stevens,  8  How.  399  ; 
Mclvee  v.  Garcelon,60Me.  167  ;  11  Am.  Hep.  200. 

7  See  subsequent  chapter  on  SELLER'S  LIEX. 

8  See  subsequent  chapter  on  STOPPAGE  ix  TKAXSITU. 

9  2  Schouler  on  Personal  Property,  §  392.    And  consult  Bennett's 
.Benjamin  on  Sales,  £  6./7. 

10  See  1  Bouvior  Law  Diet.  (14th  ed.)  207.     But  where  personal 
property  is  in  the  hands  of  a  bailee,  a  transfer  by  bill  of  sale  alone  is 
good  and  valid  even  as  against  the  creditors  of  the  vendor  :  Keil  v. 
Harris,  6  Atl.  Rep.  (Pa.)  750. 

11  2  Sohouler  on  Personal  Property,  \  392 ;  citing,  Gatzweiler  v. 
Morgnrr,  51  Mo.  37.    Compare  2  Kent  Com.  501.    No  delivery  of  the 
personal  property  named  in  a  formal  bill  of  sale  is  necessary  to  pass 
the  title  as  between  the  parti  -s  :  Philbrook  v.  Eaton,  134  Mass.  ?98 ; 
citing,  Parsons  r.  Dickinson,  11  Pick.  3f-2 ;  Packard  ?'.  Wool,  4  Gray, 
307.    Bill  of  parcels  and  lease  back,  insufficient  to  pass  title  as  against 
innocent  purchaser  from  seller  :  Harlow  v.  Hall,  132  Mass.  232. 

12  See  §  243,  on  DELIVERY  OF  BILLS  OF  LADING. 

13  See  Schouler  on  Bailments,  under  Carriers  in  General ;  Barber 
r.  Taylor,  5  Mees.  &  W.  r,27  ;  2  Schouler  on  Personal  Property,  §  393, 
p.  396,  n.  2,  making  these  citations  in  support  of  statement  in  text. 

\  243.  Delivery  of  bills  of  lading.  —  As  compliance  with 
statute  of  frauds.  It  has  been  held  that  a  bill  of  lading 
is  a  symbol  of  the  ownership  of  the  goods  covered  by 
it,  and  that  the  transmission  of  a  bill  of  lading  amounts 
to  the  possession  of  the  propertj7  described  in  it,  and  is 
a  compliance  with  the  statute  of  frauds  as  to  the  sale  and 
dc liveiy  of  property.1 

As  transferring  title,  etc.  But  bills  of  lading  differ 
essentially  from  bills  of  exchange  and  other  commer- 
cial negotiable  instruments,2  and  oven  possession  of  a 
bill  of  lading,  without  the  authority  of  the  owner  and 
vendor  of  the  goods,  or  when  obtained  by  fraud,  will 
not  authorize  a  transfer  so  as  to  defeat  the  title  of  the 
original  owner,3  or  aftect  his  right  to  rescind  the  sale 
and  stop  the  goods  in  transit.4  For  while  possession  of 


DELIVERY.  I   243 

a  bill  of  lading  or  other  document  of  like  nature  may 
be  evidence  of  title,  and  in  some  circumstances  and  for 
some  purposes  equivalent  to  actual  possession  of  the 
goods,  it  does  not  constitute  title,5  nor  of  itself  affect  the 
operation  of  the  general  rule  that  property  in  chattels 
cannot  be  transferred  except  by  one  having  the  title  or 
an  authority  from  the  true  owner.6 

Reservation  of  control.  Where  the  shipper  retains  the 
right  of  disposing  of  the  property  while  in  the  hands  of 
the  consignee,  there  is,  of  course,  no  delivery  to  the  con- 
signee ; 7  and  the  object  which  the  shipper  usually  has 
in  taking  the  bill  of  lading  in  his  own  name,  when  he 
does  so,  is  to  enable  him  to  retain  such  right.8  But  there 
is  a  delivery  in  such  cases  by  the  subsequent  delivery 
of  the  indorsed  bill  of  lading,  so  that  the  risk  of  damage 
from  the  elements  should,  in  the  absence  of  any  agree- 
ment to  the  contrary,  be  borne  by  the  consignee,9 
although  there  was  no  opportunity  to  inspect  the  goods 
at  the  time.10 

1  First  Nat.  Bank  v.  McAndrews,  5  Mont.  328. 329 ;  51  Am.  Rep.  51 ; 
5  Pacif.  Rep.  879. 

2  Barnard  v.  Campbell,  £5  N.  Y.  456. 

3  See  Saltus  v.  Everett,  20  Wend.  267  ;  32  Am.  Dec.  541. 

4  Barnard  v.  Campbell,  55  N.  Y.  456 ;  Evansville  etc.  R.  R.  Co.  v. 
Erwiu,  84  Ind.  457, 466. 

5  Barnard  v.  Campbell,  55  N.  Y.  456. 

6  Barnard  v.  Campbell,  55  N.  Y.  456 ;  as  quoted,  Evansville  etc. 
R.  R.  Co.  v.  Ervvin,  84  Ind.  457,  466.    Tender  of  bill  of  lading  drawn  in 
triplicate :  Sanders  v.  Maclean,  Law  R.  13  Q.  B.  D.  327.    Indorsement 
and  delivery  for  security  :  Burdick  v.  Sewell,  Law  R.  13  Q.  B.  D.  159. 
As  transferring  property  under  Louisiana  laws :  Allen  v.  J  ones,  24 
Fed.  Rep.  11. 

7  Reservation  of  control :  See  chapter  on  that  subject. 

8  Forcheimer  v.  Stewart,  65  Iowa,  594 ;  54  Am.  Rep.  30.    Hence 
where  the  seller  proceeded  at  once  to  transfer  the  bill  of  lading  or 
shipping  receipt,  taken  in  his  own  name  and  to  his  own  order,  to  a 
bank,  as  security  for  a  sight  draft  for  the  price  of  the  goods,  the 
amount  of  such  draft  being  credited  to  him  in  his  bank  account,  it 
was  held  that  there  was  no  delivery  made  to  the  buyers  by  delivery 
to  the  currier :  Forcheimer  v.  Stewart,  65  Iowa,  594 ;  54  Am.  Rep.  30. 

9  Concerning  risk  in  general :  See  under  chapter  on  TKAXSFER 
OF  TITLE. 

10    Forcheimer  v.  Stewart,  65  Iowa,  364 ;  54  Am.  Rep.  30. 


?§  244-245  DELIVERY.  348 

\  244,  Delivery  of  warehouse  receipts.  —  As  symbolical 
delivery  of  property.  When  the  terms  of  a  warehouse 
receipt  are  such  that  the  warehouseman  offers  or  under- 
takes to  deliver  the  property  to  whomsoever  the  receipt 
may  be  indorsed,  a  symbolical  delivery  of  the  property 
may  be  effected  by  the  assignment  or  delivery  of  the 
receipt,  and  the  warehouseman  becomes  bailee  to  such 
assignee,  in  accordance  with  the  terms  of  his  contract.1 

Consent  of  bailee.  But  when  the  receipt  restricts  the 
promise  to  deliver  to  the  bailor  personally,  and  not  to 
deliver  to  his  order,2  a  change  in  the  possession  of  the 
property  bailed  cannot  be  effected  by  a  mere  assign- 
ment of  the  receipt,  without  the  consent  of  the  bailee 
thereto,  so  as  to  defeat  the  rights  of  subsequent  attach- 
ing creditors  of  the  bailor.3 

1  Gill  v.  Frank,  12  Oreg.  507 ;  8  Pacif.  Rep.  764. 

2  As  was  the  case  in  Solomon  v.  Bushnell,  11  Or.  277 ;  3  Pacif.  Rep. 

3  Gill  v.  Frank,  12  Or.  507 ;  8  Pacif.  Rep.  764,  766 ;  quoting  and 
approving,  Hallegarten  v.  Oldham,  135  Mass.  1. 

\  245.  Excuses  for  failure  to  deliver,  etc.  —  Refusal  of 
tender.  Where  the  buyer,  after  a  part  of  the  grain  sold 
was  delivered,  refused  to  receive  any  more  of  it,  upon 
the  ground  that  the  time  had  expired  within  which  it 
was  required  to  be  delivered  by  the  terms  of  the  con- 
tract, such  refusal  has  been  held  to  amount  to  a  waiver 
on  the  buyer's  part  of  any  subsequent  tender  or  offer  to 
deliver.1 

Insolvency  of  purchaser.  And  it  has  been  considered 
that  if  after  the  making  of  an  executory  contract  for  the 
delivery  of  goods,  the  purchaser,  who  has  not  paid  the 
contract  price,  becomes  insolvent,  the  vendor  may  re- 
fuse to  deliver  without  being  liable  therefor.2 

Freezing  of  river.  But  performance  of  a  contract  to 
deliver  corn  is  not  excused  in  Louisiana3  by  the  freezing 


349  DELIVERY.  I  246 

of  a  river  on  the  eleventh   day,  when  transportation 
could  have  been  made  in  some  other  way.4 

1  Roberts  v.  Mazeppa  Mill  Co.  30  Minn.  413,  415.    And  see  Cauda 
V.  Wide,  100  N.  Y.  127. 

2  Ullman  v.  Babcock,  63  Tex.  68,  71. 

3  See  La.  Rev.  Civ.  Code,  art.  1933,  paragraphs  2  and  3. 

4  Engster  ?-.  West,  35  La.  An.  119;  48  Am.  Rep.  232  ;  distinguish- 
ing, White  v.  Kearney,  9  Rob.  (La.)  495;  Police  Jury  v.  Taylor,  2  La. 
An.  272  ;  Lagrave  v.  Fowler,  4  La.  An.  243 ;  Bietry  v.  New  Orleans,  22 
La.  An.  149. 

$  246.  Kelation  to  third  parties.  —  More  required  than 
between  the  original  parties.  The  effect  of  delivery  with 
reference  to  the  rights,  not  of  buyer  and  seller  alone, 
but  of  third  persons,  such  as  attaching  creditors1  and 
subsequent  purchasers,  should  be  carefully  distin- 
guished from  its  effect  as  between  the  parties  them- 
selves.2 For  as  between  seller  and  buyer,  property 
may  often  pass  without  actual  delivery  of  the  goods, 
while  the  seller  may  be  estopped  to  deny  the  validity 
of  his  own  sale,3  arid  the  seller  performs  his  duty  of  de- 
livery sufficiently4  by  tendering  the  subject-matter  for 
acceptance.5  But  in  cases  which  involve  the  rights  of 
third  persons,  something  more  is  usually  required, 
comprising  a  complete  delivery,  acceptance  by  the 
buyer,6  an  actual  and  substantial  change  of  possession 
between  the  parties,7  and  a  transfer  not  only  of  property 
rights  or  indicia,  but  of  the  thing  itself.8 

Bill  of  sale —  Severance  of  grass.  Delivery  of  a  bill  of 
sale  will  not,  independently  of  registry  statutes,  suffice 
as  against  third  persons,  where  actual  delivery  is  pos- 
sible;9 and  severance  of  grass  is  necessary  before  de- 
livery, since  the  article  must  exist  as  a  chattel.10 

Delivery  to  transfer  title.  In  regard  to  delivery  effect- 
ing the  transfer  of  title,  less  might  be  required  between 
third  persons  than  between  the  parties  themselves,11 
since  a  title  might  pass  as  against  creditors  of  the  seller, 
JSTEWMAKK  SALES.  —  4O. 


§   246  DELIVERY.  350 

where  something  further,  such  as  an  opportunity  to 
inspect,  might  still  be  expected  by  the  buyer,  as  between 
himself  and  the  seller,  in  performance  of  the  full  en- 
gagement to  deliver.12 

Notice  to  custodian.  When  property  sold  in  good  fa  ith 
is  at  the  time  in  the  care  and  custody  of  a  third  person, 
notice  to  such  third  person  of  the  sale  is  sufficient  to 
constitute  a  delivery,  as  to  subsequent  purchasers  or 
attaching  creditors.13 

1  Sufficiency  of  delivery  against  creditors  (case  of  nailing  up  holes 
in  corn-crib):   Pope  ?'.  Cheney,  27  N.  \V.  Rep.  (Iowa),  754,  citing  cases 
and  discussing  subject. 

2  2  Schouler  on  Personal  Property,  \  395.    And  consult  Bennett's 
Benjamin  on  Sales,  \  675, 11.  d,  pp.  781,  785. 

3  See  under  chapter  on  TRANSFER  OF  TITLE. 

4  See  §  228,  on  DUTY  OF  DELIVERY. 

5  2  Schouler  on  Personal  Property,  I  395. 

6  Acceptance  in  general :  See  chapter  on  that  subject. 

7  Presumption  of  fraud  upon  creditors  or  third  parties  where  a 
seller  retains  possession  of  the  things  sold :    See  under  chapter  on 
FRAUDULENT  SALES. 

8  2  Schouler  on  Personal  Property,  §  395,  referring  as  to  delivery 
against  the  seller's  creditors,  to  "Bullard  v.  Wait,  16  Gray,  55  ;  Veazie 
v.  Somerby,  5  Allen,  280  ;  Wright  r.  Vaughn,  45  vt.  388  ;  Garman  v. 
Cooper,  72  Pa.  St.  32 ;  McKee  v.  Garcelon,  60  Me.  165  :  11  Am.  Rep. 
200  ;  Morgan  v.  Taylor,  32  Tex.  363. 

9  See  Burge  v.  Cone,  6  Allen,  412  ;  Solomons  v.  Chesley,  58  N.  H. 
238  ;  Dempsey  v.  Gardner,  127  Mass.  381 ;  34  Am.  Rep.  383  ;  citing, 
Carter  v.  Williard,  19  Pick.  1 ;  Shumway  v.  Rutter,  7  Pick.  56,  58  ;  19 
Am.  Dec.  340  ;  and  8  Am.  Dec.  443.  447 ;  Packard  v.  Wood,  4  Gray,  307  ; 
Rourke  r.  Bullens,  8  Gray,  549  ;  Veazie  v.  Somerby,  5  Allen.  280,  289 ; 
and  distinguishing,  Tux  worth  v.  Moore,  9  Pick.  347 ;  20  Am.  Dec.  479  ; 
Bullard  ?>.  Wait,  16  Gray,  55  ;  Chapman  v,  Searle,  3  Pick.  38  ;  Ingalls 
r.  Herrick,  108  Mass.  351 ;  Thorndike  v.  Bath,  114  Mass.  116  ;  19  Am. 
Rep.  318  ;  Dugan  v.  Nichols,  125  Mass.  43 ;  Hardy  v.  Potter,  10  Gray,  89. 
But  when  personal  property  is  in  the  hands  of  a  bailee,  a  transfer 
by  bill  of  sale  alone  is  good  and  valid,  even  as  against  the  creditors  of 
the  vendor :   Keil  v.  Harris,  6  Atl.  Rep.  (Pa.)  750. 

10  See  Lamson  v.  Patch,  5  Allen,  586 ;  81  Am.  Dec.  765  ;  as  stated,  2 
Schouler  on  Personal  Property,  §  395,  n.  3,  whence  paragraph  derived, 
excepting  mention  of  Dempsey  v.  Gardner,  127  Mass.  381 ;  34  Am. 
Rep.  388. 

11  See  citations  in  next  note. 

12  See  Hunter  v.  Wright,  12  Allen,  548,  as  cited  in  support  of  text 
in  2  Schouler  on    Personal    Property,  ?  395,  which    also  refers  to 
Washburn  Co.  v.  Russell,  130  Mass.  543  ;  Wyoming  Bank  v.  Dayton, 
102  U.  S.  59. 

13  Lufkins  v.  Collins,  7  Pac.  Rep.  (Idaho)  95.    Relying  upon  Ben- 
nett's Benjamin  on  Sales,  \  675,  n.  d\  How  v.  Taylor,  52  Mo.  592; 


351  DELIVERY.  \  247 

Cofield  ?'.  Clark,  2  Colo.  101  ;  Dempsey  v.  Gardner,  127  Mass.  381  ;  34 
Am.  Hep.  388.  Holding  that  error  arises  from  contradictor  in- 
struction that  in  order  to  constitute  such  delivery  it  is  necessary 
that  the  seller,  purchaser,  and  third  party  should  all  agree,  and  that 
such  a  charge  falls  within  the  rules  as  to  the  incurable  character  of 
inconsistent  instructions,  laid  down  in  Mackey  v.  People,  2  Colo.  13  ; 
Kice  v.  Olin,  7fl  Pa.  St.  3S1  ;  Thompson's  Charging  the  Jury,  |  69; 
People  v.  Campbell,  30  Gal.  312. 

§  247.  Sufficiency  of  delivery  against  creditors.  —  Kind 
of  possession  necessary  to  be  given.  The  general  rule  is, 
that  a  sale  of  personal  property  is  not  good  against  the 
creditors  of  the  vendor,  unless  possession  be  delivered 
by  the  vendor  in  accordance  with  the  sale.1  And  in 
determining  the  kind  of  possession  necessary  to  be 
given,  regard  must  be  had  not  only  to  the  character  of 
the  property,  but  also  to  the  nature  of  the  transaction, 
the  position  of  the  parties,  and  the  intended  use  of  the 
property,  while  no  such  change  of  possession  as  will 
defeat  the  fair  and  honest  object  of  the  parties  is  re- 
quired.2 A  change  in  the  location  of  the  property  is 
not  always  essential  to  protect  the  property  against  the 
creditors  of  the  vendor,  but  if  the  purchase  was  in  good 
faith,  and  for  a  valuable  consideration,3  followed  by  acts 
intended  to  transfer  the  possession  as  well  as  the  title, 
and  the  vendee  assumed  such  control  of  the  property 
as  to  reasonably  indicate  a  change  of  ownership,  the 
delivery  of  possession  cannot,  as  matter  of  law,  be  held 
insufficient,  but  the  case  should,  under  such  circum- 
stances, go  to  the  jury  to  find  whether  the  sale  was  in 
good  faith  or  merely  colorable.4 

Setting  portion  apart.  A  setting  apart  of  a  portion  of 
goods  to  be  delivered  under  an  entire  contract  vests 
title  in  the  purchaser  to  such  portion,  as  against  a  sub- 
sequent attaching  creditor  of  the  vendor,  though  it  be 
not  actually  removed.5 

Thing  not  in  existence,  etc.  And  a  contract  that  all 
the  colts  to  be  foaled  by  certain  mares  sold  by  one 
party  to  another,  and  kept  in  the  stables  of  the  former 


g   247  DELIVERY.  352 

under  the  care  of  the  latter,  were  to  belong  to  the  latter, 
is  a  valid  contract  of  sale,  and  not  void  as  against 
creditors  for  want  of  delivery.6 

Delivery  before  levy.  Bat  a  sale  of  personal  property  ^ 
not  accompanied  by  an  immediate  delivery,  is  void  as 
to  existing  creditors,  though  the  goods  are  delivered 
before  levy.7  Where,  however,  the  owner  of  wheat  in 
bulk  sells  the  same  by  parol,  receiving  at  the  same 
time,  as  part  payment,  his  own  promissory  note  from 
the  vendee,  and  where  transfer  of  the  wheat  is  after- 
wards effected  by  locking  the  granary,  and  giving  the 
key  to  the  vendee,  the  transfer  of  the  title  and  posses, 
sion  is  complete,  and  a  subsequent  seizure  by  the 
sheriff  under  a  writ  of  attachment  by  a  creditor  of  the 
vendor  is  illegal,  even  where  the  sheriff  had  levied  his 
writ,  though  he  had  performed  no  other  act,  before  the 
transfer  of  the  promissory  note  and  the  delivery  of  the 
key.8 

Other  than  actual.  There  has  been  held  to  be  a  suf- 
ficient change  of  possession  to  pass  property  as  against 
creditors,  where  one  party  indorsed  certain  notes  for 
another,  receiving  payment  therefor  in  corn,  for  which 
a  bill  of  sale  was  executed,  but  this  bill  of  sale  proved 
unsatisfactory,  and  an  oral  sale  of  the  corn  was  made, 
both  parties  going  to  the  crib  when  the  one  formally 
delivered  possession  to  the  other,  who  nailed  up  certain 
holes  in  the  crib.9 

1  Crawford  v.  Davis,  99  Pa.  St.  376,  S7S. 

2  Crawford  v.  Davis,  99  Pa.  St.  376,  378,  citing  illustrative  case  of 
Du.ilap  r.  Bournonville,  2  Casey,  72,  and  stating  the  same  principle 
to  be  recognized  in  Born  v.  Shaw,  5  Casey.  288  ;  McKibbin  v.  Martin, 
14  Smith,  P.  F.  352  ;  Evans  v.  Scott,  8  Norris,  136  ;  Pearson  v.  Carter, 
13  X  orris,  156. 

3  Uonaflde  purchasers  in  general:  See  chapter  on  that  subject. 

4  Crawford  v.  Davis,  99  Pa.  St.  576, 579. 

5  State  ?'.  Knapp  etc.  Co.  13  Mo.  App.  467 ;  citing,  Aldridge  v. 
Johnson,  7  El.  &  B.  885;  Story  on  Sales,  2J9;  Thompson  v.  Conover, 

a2K.ii.46e, 


353  DELIVERY.  I   248 

<5  Hull  i\  Hull,  48  Conn,  250 ;  40  Am.  Bop.  1G5.  Relying  for  point 
that  the  doctrine  as  to  retention  of  possession  has  no  application 
where  property  not  existing  or  already  in  possession  cf  vendee,  upon 
Lucas  v.  Birdsey,41  Conn.  357  ;  Capron  v.  Porter,  43  Conn.  389 ;  Spring 
v.  Chipman,  6  Vt.  66J ;  Bellows  v.  Wells,  36  Vt.  599.  Compare  gen- 
erally, Hull  v.  Sigsworth,  48  Conn.  258  ;  40  Am.  Bep.  167  ;  Webster  v. 
Anderson,  42  Mich.  554  ;  36  Am.  Hep.  452. 

7  Edwards  v.  Sonoma  Valley  Bank,  59  Cal.  148  ;  citing,  "Watson  v. 
Bogers,  53  Cal.  401. 

8  Sharp  v.  Carroll,  27  N.  W.  Bep.  (Mich.)  832. 

9  Pope  v.  Cheney,  27  N.  W.  Bep.  (Iowa)  754,  with  n.  756.    Case  dis- 
tinguishes Boothby  v.  Brown,  40  Iowa,  104;  Button  v.  Ballou,  46 
Iowa,  517 ;  McKay  v.  Clapp,  47  Iowa,  418 ;  Smith  v.  Champney,  50 
Iowa,  174  ;  Hickok  v.  Buell,  51  Iowa,  655  ;  2  N.  W;  Bep.  5L2  ;  Nuckolls 
v.  Pence,  52  Iowa,  581 ;  3  N.  W.  Bep.  631.    So  pointing  out  hogs  which 
were  to  be  taken  in  payment  for  services,  but  were  to  remain  in 
pasture  until  there  should  be  an  opportunity  for  further  selling  them, 
has  been  held  a  valid  delivery  as  against  the  seller's  creditors : 
Webster  v.  Anderson,  42  Mich.  554 ;  36  Am.  Bep.  452.    Delivery  of 
samples  and  bill  of  parcels :  Ingalls  v.  Herrick,  108  Mass.  351 :  11  Am. 
Kep.  360. 

$  248.  Delivery  to  carrier.  —  Putting  goods  in  transit. 
Delivery  to  the  buyer's  accredited  agent  is  equivalent 
to  delivery  to  the  buyer  himself.1  And  even  if  the 
seller  be  bound  to  send  the  goods,  instead  of  delivering 
them  upon  his  own  premises,2  the  act  of  performance 
is  usually  completed3  when  he  has  put  the  goods  in 
transit.* 

As  delivery  to  buyers  agent.  For  delivery  to  a 
common  carrier5  is  presumed  to  be  tantamount  to  de- 
livery to  the  buyer's  own  agent ; 6  though  if  the  seller 
chooses  to  keep  the  carrier  his  own  agent,  for  his  better 
security  or  other  cause,  the  act  of  delivery  necessarily 
remains  incomplete  while  this  agency  continues.7 

Buyer's  directions,  etc.  A  delivery  of  goods  to  a 
common  carrier  in  pursuance  of  the  directions  of  the 
purchaser  is  a  delivery  to  the  purchaser ; 8  and  ho  ia 
liable  to  the  seller  for  the  price,  though  they  bo  lost  by 
the  negligence  of  the  carrier  before  they  reach  him.9 
And  where  goods  are  forwarded  by  an  express  company 
marked  C.  O.  D.  by  instructions  of  the  purchaser,  the 
sale  is  complete  when  the  goods  are  delivered  to  the 
carrier.10  But  where  a  seller  is  to  deliver  specified 


§   248  DELIVERY.  354 

goods,  such  as  merchantable  ice,  on  shipboard  at  the 
place  of  shipment  within  a  specified  period,  the  buyer 
must  first  name  the  ship  and  give  the  seller  notice  of 
his  readiness  to  receive  the  goods  on  board.11 

Delivery  of  goods  and  'mailing  of  documents.  By  the 
delivery  of  goods  to  a  railway  company  to  be  carried 
and  delivered  to  creditors,  and  the  taking  of  the  bill  of 
lading  for  their  benefit,  and  mailing  it  to  them  with  the 
invoice  or  bill  of  sale,  the  company  becomes  the  bailee 
of  the  goods  for  the  creditors'  use  and  benefit,  and  by 
such  manifestations  of  the  intention  of  the  debtor,  his 
right  to  the  property,  and  authority  over  it,  are  for  the 
time  being  at  an  end,  and  the  title  vests  in  the  creditors, 
subject  only  to  their  refusal  to  accept  the  consignment 
when  the  facts  come  to  their  knowledge.12 

Delivery  at  wharf,  etc.  In  general,  a  delivery  of  goods 
to  a  common  carrier,  much  more  to  one  specially  desig- 
nated by  the  buyer,13  is  a  delivery  to  the  buyer.14  But 
what  amounts  to  a  delivery  to  carriers  may  sometimes 
be  a  question  of  fact  for  a  jury ;  though  ordinarily,  de- 
livery at  their  wharf,  freight-house,  or  warehouse,  and 
bringing  it  to  the  notice  of  the  servants  of  the  carrier, 
should  be  so  considered.15 

Place  where  sale  complete.  Where  the  contract  is 
silent  on  the  subject,  and  there  is  nothing  in  the  trans- 
action indicating  a  different  intention,  and  a  manufac- 
turer in  one  city  receives  through  his  agent  residing  in 
another  an  order  for  goods  from  a  customer  there,  and 
fills  the  order  by  delivering  the  goods  to  a  common 
carrier  at  the  place  of  manufacture,  consigned  to  such 
customer  at  his  place  of  residence,  or  to  such  agent  for 
him,  the  sale  is  complete  and  the  title  passes  at  the 
place  of  shipment,16  even  though  the  customer  on  re- 
ceiving the  goods  at  his  place  of  residence  pays  to  such 
agent  there  the  purchase  price.17 


855  DELIVERY.  §   248 

1  2  Schouler  on  Personal  Property,  §  396.    And  see  Story  on  Sales, 
|  305 ;  2  Kent  Com.  4J9 ;  Bonner  v.  Marsh,  10  Smedes  &  M.  376 ;  48 
Am.  Dec.  7o4,  7C5. 

2  See  I  228,  on  DUTY  TO  DELIVER. 

3  Compare  Pilgreen  v.  State,  71  Ala,  368. 

4  See  2  K>nt  Com.  439  ;  2  Schouler  on  Personal  Property,  §  396 ; 
citing,  iuso,  'j.uompson  v  Baltimore  etc.  It.  R.  Co.  28  Md  396. 

5  Common  carriers  in  general :  See  1  Bouvier  Law  Diet.  (14th  ed.) 
299. 

6  See  Hobart  v.  Littlefield,  13  R.  1. 341, 342  ;  2  Schouler  on  Personal 
Property,  2$  272, 806;  Bennett's  Benjamin  oa  Sales,  §6.,3;  2  Corbi  I's 
Benjamin  on  Sales,  \  1040,  n.  23.    And  consult  Story  oa  Sales,  §  i>ou; 
Bradford  v.  Marbury,  12  Ala.  520 ;  46  Am.  Dec.  2G4,  2G8. 

7  2  Sohouler  on  Personal  Property,  §  3f)6  ;  citing,  Dunlop  v.  Lam- 
bert, 6  Clark  <fc  F.  600 ;  Wait  v.  Baker,  2  Ex.  1 ;  Langdell's  Cases  on 
Sales,  942  ;  Magruder  v.  Gage,  33  Md.  344  ;  3  Am.  Rep.  177  ;  Ranney  r. 
Hi?V/,  5  Wis.  62;  Hall  v.  Gaylor,  37  Conn.  550;  Wilcox  Silver  Plate 
Co.  v'.  Green,  72  N.  Y.  17  ;  Perkins  v.  Eckert,  55  Cal.  400. 

8  Burton  v.  Baird,44  Ark.  556;  citing,  State  v.  Carl,  43  Ark.  353; 
Bennett's  Benjamin,  on  Sales,  $  181, 693. 

9  Burton  v,  Baird,  44  Ark.  556. 

10  Pilgreen  v,  State,  71  Ala.  368.    And  see  State  v.  O'Neil,  58  Vt.  140 ; 
56  Am.  Rep.  5.37. 

11  Walton  v.  Black,  5  Del.  149.    Delivery  "  free  on  board,"  duty  of 
urchaser:    Clark  v.  Rose,  29  Up.  Can.  Q.  B.  168,  fully  reviewing 

tglish  cases. 

12  Brown  v.  Bowe,  35  Hun,  488, 490.    Relying  upon  alleged  similar 
cases  of  Walley  v.  Montgomery?  3  East,  5S5  ;  Langdell's  Cases  oa 
Sales,  911 ;  Anderson  v.  Clark,  2  Bmg.  20 ;  and  Sturtevant  v.  Orser,  24 
N.  Y,  533 ;  8J  Am.  Dec.  321. 

13  See  Bradford  v.  Marbury,  12  Ala.  520  ;  46  Am.  Dec.  264,  203. 

14  Hobart  v.  Littlefield,  13  R.  I.  331, 342.    For  unless  the  seller  has 
contracted  to  deliver  the  goods  to  tue  buyer  at  some  particular  ph.i  e 
or  in  some  particular  manner,  everything  that  the  seller  has  to 
do  concerning  delivery  is  then  completed:  Hobart  v.  Littlefield,  13 
R.  I.  341,  342 ;  citing,  Ludlow  v.  Bowne,  1  Johns.  115  ;  Dunlop  v.  Lam- 
bert, 6  Clark  &  F.  600,  620 ;  2  Kent  Com.  402, 4U4,  499  ;  Garland  v.  Lane, 
46  N.  H.  245, 248 ;  Hunter  v.  Wright,  12  Allen,  548. 

15  Hobart  v.  Littlefield,  13  R.  I.  341, 312.    Yet  a  delivery  at  a  wharf 
may  be  of  itself  an  incomplete  act,  to  be  explained  by  wiiat  has  pre- 
ceded it,  or  by  what  takes  place  subsequently:  Hobart  v.  Littlefield, 
13  R.  I.  341,  342;  citing,  The  M.  K.  Rowley.  2  Low.  447;  Columbia 
Saw  Mill  Co.  v.  Ncttleship,  I^w  R.  3  Com.  P.  499,  502;  Packard  v, 
Getman,  6  Cowen,  7G7J  R.  R.  Co.  v,  Barrett,  36  Ohio  St.  448. 

16  Sarbecker  v.  State,  65  "Wis.  171 ;  56  Am,  Rep.  624. 

17  Sarbecker  v.  State,  65  Wis.  171 ;  56  Am.  Rep.  624,  626.    Relying 
upon  Frugano  v.  Long,  4  Barn.  &  C.  219  ;  Langdell's  Cases  on  Sales, 
798  ;  Ranney  v.  Higby,4  Wis.  154  ;  Somers  v.  McLaughlin,  57  Wis.  364  ; 
Comin.  v.  Farnum,  114  Mass.  267;  Janney  v.  Sleeper,  30  Minn.  47-J  ; 
referring,  also,  to  City  of   Kansas  v.  Collins,  8  Pac.  Rep.  (Kan.) 
865 ;  citing  following  cases  as  showing  that  the  same  principle  has 


pui 
En; 


Finch  uL~Mansfleld,T7  ~Mass.~89~;  Abberger  v.  Marin,  102  Mass.  70  j 


2  249  DELIVERY,  356 

Brockway??.  Maloney.  102 Mass.  308  ;  Dolan  v.  Green,  110  Mass.  322; 
Frank  v.  Hoey,  128  Mass.  263 ;  Hill  r.  Spear,  50  N.  H.  253;  9  Am.  Rep. 
205  ;  Tegler  r.  Shipman,  33  Iowa,  li»4  ;  11  Am.  Rep.  118;  Boothby  v. 
Plaisted,  51  N.  H.  436  ;  12  Am.  Rep.  140  ;  Shuenfeldt  v.  Junkerman,  20 
Fed.  Rep.  357.  See,  also,  State  v.  O'Neil,  53  Vt.  140  ;  56  Am.  Rep.  557- 

§  249.  Seller's  duties  concerning1  such  delivery.  —  Taking 
precautions  for  transportation.  The  seller  is  not  re- 
sponsible for  the  risks  of  transit,  if  he  has  treated  the 
carrier  as  the  buyer's  agent ; 1  but  he  is  bound  to  pack 
in  the  customary  and  proper  manner,  and  tcke  other 
suitable  precautions  according  to  the  character  of  the 
goods  and  their  probable  exposure  ; 2  and  he  must  not 
invite  injury,  nor  perform  negligently  any  duties  inci- 
dental to  transportation  which  his  own  contract  has  by 
fair  inference  placed  upon  him.3 

Mode  of  conveyance^  etc.  So  the  seller  is  bound,  in 
the  absence  of  special  stipulations  in  the  contract  pre- 
scribing the  precise  method  of  transportation,  to  for- 
ward the  goods  by  the  usual  means  of  conveyance,4  or 
at  least  by  such  a  channel  as  he  has  reason  to  suppose 
the  buyer  prefers.5 

Notice  of  consignment.  And  he  should  inform  the 
buyer  promptly  of  his  consignment  to  a  common  car- 
rier in  all  cases  where  he  undertakes  transportation 
from  a  distance.6 

Seller  consigning  to  himself.  "Where  goods  are  sold 
upon  an  order  from  a  buyer  living  at  a  place  distant 
from  the  seller,  and  the  latter  undertakes  to  ship  them, 
it  is  his  duty  to  deliver  them  to  the  carrier,  properly 
consigned;7  and  if  he  consigns  them  to  himself,  the 
buyer  is  not  bound  to  take  them  from  the  carrier,  ncr 
to  make  inquiries  for  them,  but  the  seller  is  liable  for 
*the  loss  caused  by  the  delay  in  receiving  and  caring 
for  the  goods  at  their  destination.8 

1  See  2  Kent  Com.  499" ;  Bennett's  Benjamin  on  Sales,  ?  693  ;  2 
Corbin's  Benjamin  ou  Salos,  §  1040.  Risks  of  transit  in  general :  See 
2  Schouler  on  Personal  Property,  g  SJ7 ;  citing,  Taylor  v.  Cole,  111 


357  DELIVERY.  \   250 

Mass.  363  ;  Vale  v.  Bayle,  Cowp.  294 ;  2  Kent  Com.  500  :  Arnold  v. 
Prout,  51  N.  H.  387  ;  Waldron  v.  Romaine,  22  N.  Y.  368  ;  Sedgwick  v. 
Cottenham,  54  Iowa,  512. 

2  2  Schouler  on  Personal  Property,  §  396. 

3  See  Clarke  v   Hutchins,  14  East,  47") ;  Bull  v.  Robinson,  10  Ex. 
341 ;  2  Schouler  on  Personal  Property,  §  396  ;  referring,  also,  to  John- 
son v.  Stoddard,  100  Mass.  300. 

4  Consult  Wheelhouse  v.  Parr,  6  N.  E.  Rep.  (Mass.)  787. 

5  See  Comstock  ?;.  Affoelter,  50  Mo.  411 ;  2  Schouler  on  Personal 
Property,  \  3J6 ;  citing,  also,  Story  on  Sales,  §  305. 

6  See  2  Kent  Com.  500  ;  Bell  on  Sales,  89  ;  cited  in  support  of  text 
in  2  Schouler  on  Personal  Property,  £  39(5.    And  consult  Bradford  v. 
Marbury,  12  Ala.  oiiO  ;  46  Am.  Dec.  264,  268. 

7  Sohn  v.  Jervis,  101  Ind.  578,  581. 

8  Sohn  v.  Jervis,  101  Ind.  578,  581. 

$  250,  Directions  concerning-  transportation.  —  In  gen- 
eral. In  various  instances  goods  ordered  and  contracted 
for  are  not  delivered  directly  to  the  purchaser,  but  are 
to  be  sent  to  him  by  the  vendor,  and  the  vendor  delivers 
them  to  the  carrier,  to  be  transported  in  the  mode  agreed 
on  by  the  parties,  or  directed  by  the  purchaser;  or 
where  no  agreement  or  directions  given,  to  be  trans- 
ported in  the  usual  mode  ;  or  the  purchaser,  being  in- 
formed of  the  mode  of  transportation,  assents  to  it ;  or 
there  have  been  previous  sales  of  other  goods  to  the 
transportation  of  which,  in  a  similar  manner,  the  pur- 
chaser has  not  objected.1  And  in  such  cases  the  goods, 
when  delivered  to  the  carrier,  are  at  the  risk  of  the  pur- 
chaser, and  the  property  is  deemed  to  be  vested  in  him, 
subject  to  the  vendor's  right  of  stoppage  in  transitu.2 

Changing  directions,  etc.  But  this  proposition  assumes 
that  proper  directions  and  information  are  given  the  car- 
rier as  to  forwarding  the  goods.3  And  if,  while  the  goods 
are  yet  in  the  hands  of  the  carrier,  and  before  transpor- 
tation of  them  has  commenced,  the  vendor  changes  the 
directions  as  given  to  him  by  the  purchaser,  or  author- 
izes the  carrier  to  transport  them  in  a  different  mode 
from  that  directed  by  the  purchaser,  and  loss  has 


g    251  DELIVERY.  358 

thereby  occurred,  the  vendor  cannot  claim  that  the 
goods  were  delivered  by  him  to  the  purchaser.4 

1  Wheelhouse  v.  Parr,  6  N.  E.  Hep.  787 ;  Sup.  Jud.  Ct.  Mass.  May 
8,  18S6. 

2  Wheelhouse  v.  Parr,  6  N.  E.  Rep.  787 ;  and  see  cases  cited  in 
next  note. 

3  See  Whiting  v.  Farrand,  1  Conn.  60;  Quimby  v.  Carr,  7  Allen, 
417  :  Finn  r.  Clark,  10  Allen,  484 ;  Same  v.  Same,  12  Allen,  522 ;  Dow- 
ner ?\  Thompson,  2  Hill,  137;  Langdell's  Cases  on  Sales,  833;  Foster 
r.  Rockwell,  104  Mass.  170  ;  Odell  v.  Boston  etc.  R.  R.  103  Mass.  5u  ; 
Wigton  v.  Bowley,  130  Mass.  252. 

4  Wheelhouse  v.  Parr,  6  X.  E.  Rep.  787,  n.  789.    By  C9ntiriuing  to 
exercise  dominion  over  them,  and  by  giving  a  new  direction,  im- 
pliedly  withdrawing  the  directions  previously  given,  he  is  precluded 
from  asserting  that  he  has  made  a  complete  delivery  by  his  original 
act,  as  the  change  in  the  relation  given  relates  back  to  and  qualifies 
tlie  original  delivery  :  Wheelhouse  v.  Parr,  6  X.  E.  Rep.  787,  n.  789. 

§  251,  Delivery  to  warehouseman.  —  Of  goods  boxed, 
marked,  etc.  The  same  principle  of  agency1  which 
applies  to  a  carrier  may  likewise  be  invoked  in  case 
delivery  is  made  to  a  warehouseman ; 2  and  hence, 
tobacco,  which  has  been  paid  for  in  advance,  may  be 
boxed  by  the  seller,  marked  with  the  buyer's  name,  and 
delivered  to  a  warehouseman  3  to  be  kept  for  the  buyer,4 
this  being  done  in  pursuance  of  the  contract  of  sale, 
and  in  full  performance  of  the  seller's  undertaking.5 

Warehouseman  as  custodian  for  seller.  But  a  ware- 
houseman who  holds  goods  for  the  seller,  in  the  first 
place,  is  usually  regarded  as  the  seller's  agent  until  he 
attorns  over  in  some  way  to  the  buyer,6  or  else  yields 
up  his  custody  altogether.7 

1  Agency  in  general :  1  Bouvier  Law  Diet.  (14th  ed.)  99. 

2  2  Schouler  on  Personal  Property,  §  307. 

3  Warehouseman  in  general :  2  Bouvier  Law  Diet.  (14th  ed.)  650. 

4  See  citations  in  next  note. 

5  See  Hunter  v.  Wright,  12  Allen,  548 ;  Means  r.  Williamson,  37 
Mo.  55'i ;  Williams  ?>.  Lerch,  56  Cal.  330 ;  as  cited  in  support  of  text,  in 
2  Schouler  on  Personal  Property,  §  397. 

6  See  citations  in  next  note. 


N^S 


\  252.  Inspection  and  acceptance.  —  Receipt  and  accept- 
ance. Where  an  agent  comes  specially  accredited  fro  in 
the  buyer  to  receive  the  goods,1  the  seller  should  deal  with. 
him  according  to  the  scope  of  his  powers.2  And  while 
the  buyer  may  empower  any  one  not  only  to  receive 
the  goods  as  agent,  but  to  make  acceptance3  in  his  be- 
half, a  common  carrier4  is  not  ordinarily  to  be  regarded 
as  agent  for  the  buyer  to  any  such  extent,  but  only  for 
receiving  the  goods.5 

Buyer's  right  of  inspection.  Inspection  of  goods  sup- 
plied to  order,  for  ascertaining  that  they  conform  to  the 
contract,  which  is  no  part  of  a  carrier's  duty,  is  a  right 
reserved  to  the  buyer,6  and  to  be  regarded  by  the  seller, 
unless  the  opportunity  has  been  taken,  or  waived  on 
the  buyer's  behalf  before  the  goods  reach  him.7  And 
the  rule  that  in  offering  delivery  the  vendor  is  bound 
to  give  the  buyer  an  opportunity  of  examining  the  goods, 
so  that  the  latter  may  satisfy  himself  whether  they  are 
in  accordance  with  the  contract,8  'has  been  applied 
where  the  buyers  received  notice  that  the  goods  were 
at  a  certain  wharf  ready  for  delivery  on  payment  of  the 
price,  but  on  going  there  and  making  application  to  in- 
spect the  goods,  were  shown  two  closed  casks,  said  to 
contain  them,  which  the  persons  in  charge  refused  to 
allow  to  be  opened.9 

1  Walk.    Am.    Law  (4th    ed.)    ??  115-118.     Evidence   concerning 
agency:  2  Greenleaf  on  Evidence,  \\  59-68.    Agent  in  general:  See 

1  Bouvier  Law  Diet.  (14th  ed.)  100. 

2  2  Schouler  on  Personal  Property,  ?  397.    Extent  of  authority  of 
agents  :  1  Bouvier  Law  Diet.  (14th  ed.)  101. 

3  Acceptance  in  general:  See  subsequent  chapter  on  that  sub- 
ject. 

4  Common  carriers  in  general  :  1  Bouvier  Law  Diet.  (14th  ed.)  299. 

5  See  Astey  IT.  Emery,  4  Maule  &  S.  262;  Langdell's  Cases  on 
Sales,  114  ;  Meredith  v.  Meigli,  2  El.  &  B.  364,  370  ;  Langdell's  Casi-s  «>;i 
Sales,  203;  Bennett's  Benjamin  on  Sales,  §  160,  citing  other  cases  m 
relation  to  the  statute  of  frauds;  2  Schouler  on  Personal  Property, 

2  307,  making  these  citations  in  support  of  text,  and  referring  for 
divergent  decision  to  Cross  v.  O'Donnell,44  !N.  Y.  661  ;  4  Am.  Bep.  721. 

6  See  Campbell  on  Sales,  307  ;  Bennett's  Benjamin  on  Sales,.?  701. 


\   253  DELIVERY.  360 

7  See  2  Schouler  on  Personal  Property,  \  397  ;  citing,  Isherwood 
v.  Whitmore,  11  Mees.  &  W.  347. 

8  See  Croninger  v.  Crocker,  62  N.  Y.  151. 

9  Isherwood  i\  Whitmore,  11  Mees.  &  W.  347;  as  stated,  Ben- 
nett's Benjamin  on  Sales,  \  695 ;  referring,  also,  to  Startup  v.  McDon- 
ald, 6  Man.  &  G.  593  ;  Boothby  v.  Scales,  27  Wis.  626. 

§253,  Delivery  to  pass  title,  —  Necessity  of .  The  gen- 
eral rule  is  said  to  be,  that  delivery  of  possession  is 
necessary  to  the  conveyance  of  a  title  to  personal 
chattels,  as  against  every  one  except  the  vendor;1  and 
a  subsequent  purchaser,  with  no  notice  of  a  prior  sale, 
receiving  possession,  has  a  better  title  than  one  who  has 
before  purchased  the  same  thing  with  no  delivery  of 
possession.2 

Buyer's  possession  for  purposes  of  separation.  If  the 
vendee,  in  the  sale  of  a  part  of  an  entire  mass  of  bricks, 
is  allowed  to  take  possession  of  the  whole  to  enable  him 
to  separate  the  part  purchased,  the  title  passes  accord- 
ing to  the  sale  as  between  the  parties.3 

WJien  question  of  fact.  On  an  oral  sale  of  lumber,  of 
unknown  quantity,  at  an  agreed  price  per  thousand, 
nothing  being  said  about  measuring  it,  the  question 
whether  there  was  a  delivery  intended  to  pass  title  or 
not  is  one  of  fact.4 

Though  pretense  of  right  to  return.  There  has  been 
held  to  be  a  valid  sale  and  delivery  of  a  horse  where  a 
present  sale  having  been  agreed  upon,  payment  to  be 
made  at  a  future  time,  the  vendor  gave  the  vendee  an 
.oral  order  upon  the  person  in  charge  of  the  horse  to  let 
the  vendee  take  it,  and  on  the  following  day  the  vendee, 
without  disclosing  the  bargain  made  with  the  vendor, 
and  without  notice  to  the  vendor  of  any  such  view  of 
the  contract,  took  the  horse  from  the  person  in  charge, 
giving  him  to  understand  that  he  had  got  the  horse 
from  the  vendor  on  trial,  but  returned  the  horse  on  the 
same  day  to  the  person  previously  in  charge  of  it.5 


361  DELIVERY.  §   254 

1  CrawTord  v.  Forristall,  58  N.  H.  J14.    Counting  measurement, 
etc.  :  See  Prescott  v.  Locke,  51  N.  H.  94  ;  12  Am.  Rep.  55 ;  Hahn  v. 
Fredericks,  30  Mich.  22:5 ;  18  Am.  Rep.  liy;  Pittaburg  etc.  Ry.  Co.  v. 
Heck,  60In<L3Q3  ;  19  Am.  Rep.  713 ;  Thorndike  v.  Bath,  114  Mass.  116  ; 
19  Am.  Rep  318. 

2  Crawford  v.  Forristall,  58  X.  H.  114  ;  citing,  1  Parsons  on  Con- 
tracts 529  ;  Kicker  v.  Cross,  5  N.  H.  570;  Snumvvay  r.  Rutter,  7  Pick. 
56  ,  Jewett  v.  Warren,  12  Mass.  300  ;  Laufear  v.  Simmer,  17  Mass.  110. 

3  Lamprey  v.  Sargent,  58  N.  H.  241,  242 ;  citing,  Story  on  Sales, 
314  n.  3  ;  Weld  v.  Cutter,  2  Gray,  1(J5  ;  Damon  v.  Osborne,  1  Pick.  476. 

4  Morgan  v  King,  28  W.  Va.  1 ;  57  Am.  Rep.  634,  reviewing  many 
cases  relating  to  executory  sales.    But  see  us  to  various  sense  of 
word  "delivery' ,  Morse  v.  Sherman,  106  Mass.  430,  433;  section  on 
SCOPE  OF  TKKM  '•  DELIVERY." 

5  Somers  v.  McLaughlln,  57  Wis.  35S  ;  15  The  Reporter,  358,  hold- 
ing that  the  intention  of  the  parties  at  the  time  as  to  the  delivery 
must  prevail,  even  if  there  be  something  yet  to  be  done  to  complete 
it  and  citing,  Sewell  v.  Eaton,  6  Wis.  4«K) ;  Ganson  v.  Madigan,  9  Wis. 
146;  Pitts  v.  Owen,  9  Wis.  152  ;  Cotterill  r.  Stevens,  10  Wis.  422  ;  San- 
born  v.  Hunt,  10  Wis.  437  ;  Webber  v.  Roddis,  22  Wis.  61 ;  Janvrin  v. 
Maxwell,  23  Wis.  51;  McConnell  v.  Hughes,  29  Wis.  537  ;  Morrow  v. 
Campbell,  30  Wis.  90 ;    Chamberlain    v.  Dickey,  31    Wis.  68 ;    Pike 
v    Vaughn,  89  Wis.  499 ;  Fletcher  r.  Ingram,  46  Wis.  191  ;  Kirby  v. 
Johnson,  22  Mo.  354  ;  Henline  r.  Hall,  4  Ind.  189  ;  Gough  v.  Edelen,  5 
Gill,  101 ;  Foster  v.  Ropes,  111  Mass.  10. 

$  254.  Various  points  concerning  delivery.  —  Mode  of 
performance,  etc.  All  incidents  attending  the  act  of  de- 
livery follow  the  principal  thing;1  and  the  mode  of 
performance  should  be  throughout  according  to  the 
understanding  of  the  parties,  if  mutually  expressed ; 2 
and  in  whatever  respect  the  method  of  delivery  may 
have  been  left  in  doubt,  full  scope  will  be  allowed  to  the 
true  purpose  of  the  transaction,  aided  by  circumstances.3 

Incidental  expenses.  Where  a  cargo  was  sold  "from 
the  deck,"  this  was  held  to  mean  that  the  seller  should 
pay  all  that  was  necessary  in  order  to  enable  the  buj^er 
to  remove  the  cargo  from  the  deck;4  and  where  wool 
lying  in  bulk  on  the  vendor's  premises  was  sold,  pay- 
able on  delivery  by  weight,  the  vendor  was  not  allowed, 
in  the  absence  of  an  express  agreement,  to  recover  the 
cost  of  labor,  etc.,  in  putting  the  un weighed  wool  into 
sacks  furnished  by  the  purchaser.5 

Proof  of  usage.  Usage  may  give  precision  to  a  point 
which  in  terms  has  been  left  undefined,6  so  far  as  it  may 
NEWMABK  SALES.  — 31. 


§   254  DELIVERY.  362 

be  assumed  that  the  parties  knew  of  its  existence  and 
contracted  in  reference  to  it;7  and  upon  evidence  of 
usage,  the  Supreme  Court  of  the  United  States  has  held 
that  a  contract  to  deliver  so  many  bushels  of  "first 
quality  clear  barley,"  meant  to  deliver  the  barley  in 
sacks,  where  the  contract  did  not  state  whether  the 
grain  was  to  be  delivered  in  sacks  or  loose;8  but  evi- 
dence has  been  held  inadmissible  to  prove  a  usage  for 
the  vendor  of  sheep  to  shear  them  and  appropriate  the 
wool  before  delivery.9 

Shipping  article,  etc.  Shipping  an  article  to  a  party, 
and  painting  his  name  upon  it,  may  create  a  strong  in- 
ference of  sale  to  him,  but  the  act  may  be  susceptible  of 
explanation  consistently  with  the  ownership  of  the 
party  delivering.10 

Allowing  article  to  remain,  etc.  And  allowing  a  manu- 
factured article  to  remain  on  the  premises  of  the  party 
for  whom  it  was  made,  after  demand  for  the  price,  is 
not  in  law  an  unconditional  delivery,  but  merely  slight 
evidence  thereof,  and  does  not  make  the  article  the 
property  of  such  party.11 

Province  of  court  and  jury.  When  there  is  no  dispute 
as  to  the  facts,  the  question  of  delivery  is  one  of  law, 
but  where  there  is  a  conflict  in  the  evidence,  it  is  a  ques- 
tion of  fact  for  the  jury.12 

1  Incident  in  general :  1  Bouvier  Law  Diet.  (14th  ed.)  695. 

2  2  Schouler  on  Personal  Property,  ?  398.    Tender  of  second  deliv- 
ery within  time  limited  by  contract  sustained,  though  first  tender 
properly  rejected  as  not  in  accordance  with  the  contract :   Borrow- 
man  v.  Free,  Law  B.  4  Q.  B.  D.  500  ;  29  Eng.  Rep.  40  ;  as  stated.  Ben- 
nett's   Benjamin    on    Sales,  #  697.    Seller's    responsibility    as  to  a 
chattel  sold  but  not  delivered:  2  Schouler  on  Personal  Property* 
2  400  ;  citing,  Story  on  Sales,  \\  300,  394  ;  McKay  v.  Harnblin,  40  Miss. 
472. 

3  2  Schouler  on  Personal  Property,  ?  398 ;  referring  in  support  of 
paragraph,  to  Metz  v.  Albrecht,  52  111.  491 ;  Robinson  v.  United  States, 
13  Wall.  363  ;  Story  on  Sales,  \  388. 

4  Playford  v.  Mercer,  22  L.  T.  N.  S.  41. 

5  Cole  r.  Kew,  20  Vt.  21.    See  Bennett's  Benjamin  on  Sales, 
698,  so  stating  these  cases. 


363 


DELIVERY. 


254 


6  Usage  in  general :  2  Bouvier  Law  Diet.  (14th  ed.)  627. 

7  2  Schouler  on  Personal  Property,  2  398. 

8  2  Schouler  on  Personal  Property,  §  398,  p.  401,  n.  2 ;  referring, 
also,  to  Steel  Works  v.  Dewey,  37  Ohio  St.  242;  Shepard  v.  Lynch,  26 
Kan.  377. 

9  Groat  v.  Gile,  51  N.  Y.  J431 ;  as  stated,  Bennett's  Benjamin  on 
Sales,  g  6J8. 

10  Page  v.  Smith,  10  Pacif.  Rep.  833  ;  Sup.  Ct.  Oreg.  May  3, 1886. 

11  Fogg  v.  Millis,  138  Mass.  443,  445.    Under  a  contract  for  the  pur- 
chase of  a  reaping  machine,  the  delivery  will  not  be  complete  until 
the  different  parts,  which  none  but  an  expert  can  put  together,  have 
been  set  up  so  us  to  form  a  machine :   Wood  Mowing  Machine  Co.  v. 
Gaertner,  30  N.  W.  Rep.  (Mich.)  106. 

12  Glass  ?'.  Gelvin,  80  Mo.  297  ;  citing  on  general  principle,  Howd- 
lett  v.  Tallman,  14  Me.  400 ;  Hatch  v.  Bayley,  12  Cush.  29;  Williams  v. 
Gray,  39  Mo.  201. 


255  ACCEPTANCE.  364 


CHAPTER  XVIII. 

ACCEPTANCE. 

2  255.  Buyer's  duties  in  general. 

2  256.  Fetching  goods. 

2  257.  Acceptance  in  general. 

2  258.  Distinguished  from  receipt. 

2  259.  Receiving  or  taking  possession. 

2  2GO.  Bight  of  inspection. 

2  261.  What  constitutes  acceptance. 

2  262.  Right  of  rejection. 

2  263.  Buyer's  course  on  rejection. 

2  264.  Seller's  waiver  of  notice,  etc. 

2  265.  Buyer's  waiver  of  objections. 

2  2G6.  Divergence  in  quality,  etc. 

2  267.  Where  delivery  by  instalments. 

2  268.  Article  to  be  satisfactory,  etc. 

I  255.  Buyer's  duties  in  general.  —  Acceptance  and  pay- 
ment. In  contracts  of  sale  of  personal  property,  tlie 
two  leading  obligations  imposed  upon  the  buyer  are 
acceptance  of  the  chattels,1  and  payment2  for  them.3 

Obligations  not  always  passive.  The  passive  scope  of 
the  term  "acoeptance,"  however,  while  it  may  suffi- 
ciently indicate  the  buyer's  attitude  in  cases  in  which 
the  seller  is  bound  to  deliver  not  to  a  carrier  only,  but 
to  the  buyer's  own  door,  at  his  house  or  place  of  busi- 
ness,4 does  not  adequately  cover  the  common  cases 
where  the  buyer  is  presumed  to  be  under  an  obligation 
to  go  to  the  seller  and  fetch  the  property,5  or  where  the 
goods  delivered  are  in  the  custody  of  a  third  person, 
and  the  buyer  is  presumably  bound  to  procure  a  sub- 
delivery  upon  a  delivery  order  or  other  suitable  docu- 
ment of  title6  from  the  seller.7 

When  acceptance  unnecessary.  The  subject-matter 
sold  may  also,  at  the  time  of  the  bargain,  be  already  in 


365  ACCEPTANCE.  g   256 

the  buyer's  custody,  so  that  neither  formal  delivery8 
nor  formal  acceptance  is  necessary  9  to  effect  a  complete 
transfer  of  the  title.10 

Relation  to  delivery,  etc.  But  as  delivery  and  accept- 
ance are  concurrent  conditions,11  the  vendee's  duty  of 
acceptance  depends  altogether  upon  the  sufficiency  of 
the  delivery  offered  by  the  vendor.1'2  And  the  buyer  is 
not  bound,  though  such  action  might  accommodate,  to 
select  his  own  goods  from  a  larger  quantity  offered  him, 
or  to  accept  part  performance,  or  to  wait  unreasonably 
long  at  his  place  of  business  in  order  that  the  delivery 
may  be  complete,  and  all  be  found  satisfactory.13 

1  See  succeeding  portions  of  chapter. 

2  See  next  chapter  on  that  subject. 

3  2  Schouler  on  Personal  Property,  \  402.     And   see  Bennett's 
Benjamin  on  Sales,  §  699. 

4  See  \  229,  on  PLACE  OF  DELIVERY. 

5  See  next  section  on  FETCHING  GOODS.    And  compare  \  228,  on 
DUTY  TO  DELIVER. 

6  See  chapter  on  DOCUMENTS  OF  TITLE. 

7  2  Schouler  on  Personal  Property,  #403.    If  it  was  mutually 
agreed  that  the  buyer  should  name  the  place  of  delivery,  he  must  do 
so  in  due  time,  or  the  seller's  offer  of  readiness  to  perform  will  put  him 
in  default:  Hunter??.  Wetsell,84N.  Y.549 ;  38Am.Bep.  544  ;  as  stated, 
2  Schouler  on  Personal  Property,  \  403,  p.  404,  n.  2,  which  also  rpfers 
to  Greaves  v.  Ashlin,  3  Camp.  426  ;  Denman  v.  Cherokee  Iron  Co.  56 
Ga.  319. 

8  Delivery  in  general :  See  preceding  chapter  on  that  subject. 

9  See  ?  239,  on  MODE  OF  MAKING  DELIVERY. 

10  2  Schouler  on  Personal  Property,  §  403.    Transfer  of  title  :  See 
previous  chapter  on  that  subject. 

11  See  Campbell  on  Sales,  280. 

12  See  Bennett's  Benjamin  on  Sales,  2  701. 

13  See  Startup  v.  McDonald,  6  Man.  &  G.  593;  Hart  v.  Mills,  15 
Mees.  &  W.  85 ;  Kein  ?>.  Tupper,  52  N.  Y.  5f»0  ;  as  cited  in  support  of 
text  in  2  Schouler  on  Personal  Property,  §  406. 

§256,  Fetching  goods.—  As  buyer's  duty.  When  the 
vendor  has  tendered  delivery,  if  there  be  no  stipulated 
place  of  delivery,  and  no  special  agreement  that  the 
vendor  is  to  send  the  goods,  the  buyer  must  fetch  them ; * 
for  it  is  settled  law,2  that  the  vendor  need  not  in  an 


§   256  ACCEPTANCE.  366 

action  against  the  buyer  aver  nor  prove  anything  more 
than  his  readiness  and  willingness  to  deliver  on  pay- 
ment of  the  price ; 3  and  if,  in  an  action  for  goods  sold 
and  delivered,  the  plaintiff  proves  a  delivery  at  the 
place  agreed,  and  that  there  remained  nothing  further 
for  him  to  do,  he  need  not  show  an  acceptance  by  the 
defendant.4 

Within  reasonable  time.  Furthermore,  if  the  vendee 
make  default  in  fetching  away  goods  within  a  reason- 
able time 5  after  the  sale,  upon  the  request  made  by  the 
vendor,6  the  vendee  will  be  liable  for  warehouse  rent 
and  other  expenses  growing  out  of  the  custody  of  the 
goods,  or  in  an  action  for  damages,  if  the  vendor  be 
prejudiced  by  the  delay,7  though  what  is  a  reasonable 
time  is  a  question  for  a  jury  under  all  the  circumstances 
of  the  case.8 

1  See  §  228,  on  DUTY  TO  DELIVER.    And  consult  Story  on  Sales, 
404 ;  2  Corbin's  Benjamin  on  Sales,  \  897,  n.  23 ;  \  1018,  n.  G  ;  \  1025,  n.  10 ; 
and  g  1049,  n.  1. 

2  According  to  Bennett's  Benjamin  on  Sales,  \  699. 

3  See  Jackson  v.  Alloway,  6  Man.  &  G.  942  ;  Boyd  r.  Lett,  1  Com. 
B.  222  ;  Lawrence  v .  Knowles,  5  Bing.  N.  C.  399 ;  Medina  v.  ]Xornian, 
9Mees.  &  W.  820;  Spotswood  v.  Barrow,  1  Ex.  804  ;  Cort  ?>.  Amber- 
gate  By.  Co.  17  Q.  B.  127  ;  20  Law  J.  Q.  B.  460  ;  Baker  r.  Firminger,  28 
Law  J.  Ex.  1"0  ;  Cutter  v.  Powell,  2  Smith's  Leading  Cases,  1,  notes  ; 
Ruffee  v.  United  States,  15  Ct.  of  Cl.  291. 

4  Nichols  v.  Morse,  100  Mass.  523  ;  as  stated,  Bennett's  Benjamin 
on  Sales,  §  699,  n.  a  ;  referring,  also,  to  Pacific  Iron  Works  r.  Long 
Island  R.  R.  Co.  62  N.  Y.  272 ;  Washburn  Iron  Co.  v.  Russell,  130 


way,  22  N.  J.  L.  165. 

5  Reasonable  time :  See  Bass  v.  White,  65  N.  Y.  565  ;  Pinney  v. 
St.  Paul  R.  R.  19  Minn.  2ol ;  Stange  v.  Wilson,  17  Mich.  342,  348  ;  2 
Corbin's  Benjamin  on  Sales,  \  1038,  n.  2  ;  citing,  also,  Corn  v.  Spauld- 
ing,  47  Mich.  162. 

6  Compare  Jones  v.  Gibbons,  8  Ex.  920. 

7  See  Greaves  v.  Ashlin,  3  Camp.  42G ;  Bloxam  v.  Sanders,  4  Barn. 
&  C.  941  ;  Ross'  Leading  Cases,  48  ;  Dcnman  v.  The  Cherokee  Iron  Co. 
56  Ga.  319;  all  cited  in  support  of  text  in  Bennett's  Benjamin  on  Sales, 
g  700.    And  consult  Story  on  Sales,  \  404. 

8  Buddie  v.  Green,  3  Hurl.  <fe  X.  906  ;  27  Law  J.  Ex.  .T> :  Bennett's 
Benjamin  on  Sales,  g  700  ;  referring,  also,  to  Howe  r.  Huntington,  15 
Me.  350. 


367  ACCEPTANCE.  §  257 

g  257.  Acceptance  in  general.  —  Supplementing  seller^ 
performance.  Whatever  be  the  nature  or  situation  of 
the  property  bargained  for,  the  duties  of  buyer1  and 
seller  are  reciprocal ; 2  and  the  measure  of  the  buyer's 
duty  of  acceptance  must  be  according  to  the  plain  intent 
of  the  contract,3  his  part  being  to  fill  out  what  the 
seller's  performance  has  left  incomplete  toward  effect- 
ing a  legal  transfer  of  possession  and  possessory  rights.4 

Taking  and  not  merely  receiving,  etc.  His  duty  of 
acceptance  may  bind  him  to  take,  and  not  merely  to 
receive,5  though  he  may  have  to  do  neither ; 6  but  such 
as  the  contract  makes  it,  he  must  perform  his  obligation 
with  zeal  and  discretion.7 

Restrictions  on  obligations.  He  is  not  bound,  how- 
ever,8  to  accept  goods  in  a  closed  cask  which  the  vendoi 
refuses  to  open  ; 9  nor  to  remain  at  his  place  of  business 
after  sunset  on  the  day  fixed  for  delivery,  nor  even  if 
he  happens  to  be  there  after  sunset,  to  accept  unless 
there  be  time  before  midnight  for  inspecting  and  re- 
ceiving the  goods  ;10  nor  to  select  the  goods  bought  oufc 
of  a  larger  quantity,  or  a  mixed  lot  that  the  vendor  had 
sent  him  ; n  nor,  on  a  sale  of  rice  in  "  double  bags,"  to 
accept  the  goods  in  single  bags,  where  there  was  proof 
that  this  mode  of  packing  rice  made  a  difference  in  the 
sale.12 

1  See  preceding  section  on  BUYER'S  DUTIES  IN  GENERAL. 

2  2  Schouler  on  Personal  Property,  \  403. 

3  Intention  governs :  See  under  chapter  on  TRANSFER  OF  TITI  E. 

4  2  Schouler  on  Personal  Property,  §  403.    Bight  of  possession  : 
See  under  chapter  on  TRANSFER  OF  TITLE. 

5  See  next  section  on  DISTINCTION  BETWEEN  ACCEPTANCE  AND 
RECEIPT.     Notice  to  accept :  See  Cameron  v.  Wells,  30  Vt.  633 ; 
E  Iwards  v.  Hartt,  66  111.  71  ;  2  Corbin's  Benjamin  on  Sales,  \  1043,  n.  3 
(citing  these  cases) ;  §  1018,  n.  8  ;  and  \  1023,  n.  11. 

fi  See  subdivision  of  preceding  section  discussing  case  where 
goods  already  in  buyer's  custody. 

7  2  Schouler  on  Personal  Property,  ?  403. 

8  According  to  Bennett's  Benjamin  on  Sales,  \  701.    And  see  2 
Corbiu's  Benjamin  on  Sales,  \  1049. 


§   258  ACCEPTANCE.  368 

9  See  Isherwood  v.  Whitmore,  10  Mees.  &  W.  757  ;  11  Mees.  &  W. 
347. 

10  See  Startup  v.  McDonald,  6  Man.  &  G.  593. 

11  See  Dixon  r.  Fletcher,  3  Mees.  &  W.  146  ;  Hart  ?>.  Mills,  15  Mees. 
&  W.  85  ;  Nicholson  r,  Bradfield  Union,  Law  R.  1  Q.  B.  620  ;  -35  Law  J. 
Q.  B.  176 ;  Levy  v.  Green,  8  El.  &  B.  575 ;  l  El.  <fe  E.  069  ;  27  Law  J. 
Q.  B.  Ill ;  28  Law  J.  Q.  B.  319  ;  Tarling  v.  O'Riorden,  2  Ir.  Law  Rep. 
82. 

12  See  Makin  r.  London  Rice  Mills  Co.  20  L.  T.  N.  S.  705.    And  the 
buver  is  not  bound  to  comply  with  the  contract  at  all,  but  may  i  o- 
scind  it,  if  the  seller  refuse  to  let  him  compare  the  bulk  with  the 
sample  by  which  it  was  sold,  when  the  demand  is  made  at  a  proper 
and  convenient  time  :  SeeLorymer  v.  Smith,  1  Barn.  &  C.  1 ;  Toul- 
min  v.  Headley,  2  Car.  &  K.  157. 

\  258.  Distinguished  from  receipt.—  Statement  of  dis- 
tinction. Acceptance  is  to  be  clist  in  guise  d !  from  the 
mere  receipt  of  the  thing,2  as  legal  acceptance  under  a 
sale  includes  the  idea  of  a  receipt,  but  superadds  thereto 
the  element  of  intention  to  retain  in  accordance  with  the 
contract,3  that  is  to  say,  as  the  new  owner  by  purchase.4 
Acceptance  signifies  not  only  that  the  thing  is  received, 
but  that  it  is  received  in  satisfactory  fulfillment  of  the 
seller's  obligation  to  deliver,  as  a  full  compliance  with 
the  bargain  previously  entered  into.5 

Application  of  distinction.  And  under  the  well -settled 
distinction  between  receipt  and  acceptance,  the  right  to 
accept  or  reject  ore  after  receipt  by  delivery  on  board 
cars,  if  on  testing  it  proved  deficient  in  the  guaranteed 
percentage  of  zinc,  is  given  by  a  contract  which  pro- 
vided that  the  buyers  were  bound  to  take  the  ore  only 
in  case  it  proved  to  contain  such  percentage.6 

Receipt  becoming  acceptance.  But  receipt  becomes 
acceptance7  if  the  right  of  rejection  is  not  exercised 
within  a  reasonable  time,8  or  if  any  act  be  done  by  the 
buyer  which  he  would  have  no  right  to  do  unless  he 
were  owner  of  the  goods.9 

1  See  1  Bouvier  Law  Diet.  (14th  ed.)  47 

2  See  Bennett's  Benjamin  on  Sales,?  703;  referring  to  Fitzsim- 
mons  r.  Woodruff,  1  N.  Y.  Sup.  Ct.  3,  4  ;  Knoblauch  v.  Kronschiiabel, 
18  Minu.  300  ;  Browu  v.  Corp.  of  Lindsay,  35  Up.  Can.  Q.  B.  503. 


369  ACCEPTANCE.  g   259 

3  See  2  Parsons  on  Contracts,  221 ;  1  Bouvier  Law  Diet.  (14th  ed.) 
47;  Campbell  on  Sales,  169;  quoting,  Cowes  v.  Pontifex,  3  Fost.  <fc  F. 

739 

4  2  Schouler  on  Personal  Property,  §  404.    And  this  latter  is  after 
all  the  strong  element,  since  while  an  actual  receipt  by  virtue  of  tne 
purchase  is  not  always  requisite,  there  must  in  every  case  exist  the 
i-itention  to  retain  in  accordance  with  the  bargain,  else  the  contract 
has  never  been  completely  executed:  2  Schouler  on  Personal  Prop- 
erty, g  404.    Acceptance  is  the  receipt  of  a  thing  offered  by  another, 
with  an  intention  to  retain  it,  indicated  by  some  act  sufficient  for  the 
purpose  :  2  Parsons  on  Contracts,  221. 

5  2  Schouler  on  Personal  Property,  §  404.    And  see  1  Bouvier  Law 
Di"t.  (14th  ed.)  47.    So  under  statute  of  frauds:  See  Campbell  on 
Sales,  169  ;  quoting  Blackburn  on  Sales,  p.  24. 

6  Trotter  v.  Hecksher,  4  Atl.  Eep.  (N.  J.)  83. 

7  According  to  Bennett's  Benjamin  on  Sales,  \  703. 

8  See  1  Chitty  on  Contracts  (llth  A  m.  ed.),  651  ;  Bianchi  v.  Nash,  I 
Mees.  &  W.  544  ;  Beverly  v.  Lincoln  Gas  Light  Co.  6  Ad.  &  E.  829 ; 
Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250  ;  3  Eng.  Hep.  187  :  Coventry 
v.  M'Eniry,  13  Ir.  Com.  Law  Rep.  160;  Lewis  v.  Gibbons,  Black.  D.  & 
O.  62  ;  Cox  v.  Jones,  24  Up.  Can.  Q.  B.  81 ;  Gordon  v.  Waterous,  36 
Up.  Can.  Q.  B.  321  ;  Treadwell  v.  Reynolds,  39  Conn.  31  ;  Boughton  v. 
Standish,  48  Vt.  594;  Water's  Heater  Co.  v.  Mansfield,  48  Vt.  378; 
Stafford  v.  Pooler,  67  Barb.  143  ;  Greenthal  ?'.  Schneider,  53  How.  Pr. 
133  :  Delamater  v.  Chappell,  48  Md.  244  ;  Doane  ?>.  Dunham,  79  111.  131 ; 
Pennell  v.  McAfferty,84  111.  '*64  ;  Hirschhorn  ?>.  Stewart,  49  Iowa,  418; 
Henkel  v.  Walsh,  41  Mich.  664  ;  Shipman  v.  Graves,  41  Mich.  675. 

9  See  Bogue  v.  Newcomb,  1  N.  Y  Sup.  Ct.  251 ;  Neaffie  v.  Hart,  4 
Lans.  4  ;  Watktns  v.  Paine,  57  Ga.  50  ;  Hamilton  v.  Myles,  24  Up.  Can. 
Com.  P.  309  ;  Wilds  v.  Smith,  2  Ont.  App.  8. 

§  259,  Receiving  or  taking  possession.  —  Buyer's  duty 
concerning.  If  the  seller  has  duly  tendered  delivery  of 
the  goods,1  the  buyer  must,  with  reasonable  prompt- 
ness, put  himself  where  the  goods  shall  come  into  his 
own  possession  without  further  risk  or  trouble,  as  by 
sending  for  them,2  or  at  least  holding  himself  in  readi- 
ness to  receive  them  at  the  proper  time,  in  the  proper 
place,  and  in  the  proper  manner,  according  to  the  terms 
of  the  bargain.3 

Delay  in.  And  for  unreasonable  delay  in  receiving 
or  taking  possession  he  subjects  himself  to  liability  for 
such  extra  charges  and  expenses  as  may  be  incurred  in 
the  custody  of  the  goods,  besides  running  the  risk  of 
damage  and  loss ; 4  though  for  a  simple,  unexplained 
delay  on  the  buyer's  part  in  coming  to  take  the  thing 


I  260  ACCEPTANCE.  370 

away,  the  seller  would  hardly  be  justified  in  treating 
the  bargain  as  rescinded.5 

1  See  \  239,  on  MODE  OF  MAKING  DELIVERY. 

2  See  ?  256,  on  FETCHING  GOODS. 

3  2  Schouler  on  Personal  Property,  ?  405. 

4  See  Story  on  Sales,  ?  404  ;  Bennett's  Benjamin  on  Sales,  ?  700  ; 
g  256,  on  FETCHING  GOODS. 

5  2  Schouler  on  Personal  Property,  \  405. 

\  260.  Right  of  inspection.  —  After receipt .  The  buyer 
is  not  obliged  to  carry  his  receipt  of  possession  to  the 
full  extent  of  acceptance,  without  that  inspection  which 
shall  show  whether  the  chattels  tendered  by  the  seller 
are  such  as  were  bargained  for,  where,  as  in  the  case  of 
unascertained  chattels  made  or  supplied  to  order,1  such 
inspection  must  necessarily  await  the  actual  receipt  of 
the  goods.2 

Illustrations.  Thus,  where  the  bulk  is  delivered 
under  a  sale  by  sample,  the  buj'er  ought  to  be  allowed 
an  opportunity  to  compare  and  ascertain  for  himself 
the  substantial  correspondence  of  bulk  and  sample;3 
and  even  if  specific  goods  are  mutually  agreed  upon, 
the  seller  cannot  rightfully  deprive  the  buyer  of  the 
opportunity,  upon  the  arrival  of  the  goods,  to  remove 
the  wrappers,  or  break  the  package,  so  as  to  make  sure 
that  the  identical  thing  is  brought  him.4 

Mode  of  examination  of  wool.  But  where  wool  was 
purchased  "subject  to  grader's  rejection,"  such  term 
meaning  that  the  wool  was  subject  to  examination  by 
wool-graders,  and  to  rejection  or  allowance  on  contract 
price  for  such  wool  as  was  of  an  inferior  quality,  it  was 
held  that  if  the  examination  of  the  wool  was  not  con- 
ducted  fleece  by  fleece  as  required  by  the  custom  of  the 
place,  but  by  ripping  open  the  sacks,  the  vendees,  after 
retention  of  the  wool,  were  liable  for  the  contract  price, 
although  they  subsequently,  after  the  vendor's  refusal 


371  ACCEPTANCE.  $   261 

to  abide  by  their  rejection,  offered  to  have  it  graded 
fleece  by  fleece.5 

1  See  chapter  on  EXECUTORY  SALES. 

2  Schouler  on  Personal  Property,  $  406.    The  buyer  is  entitled 
before  acceptance  to  a  fair  opportunity  of  inspecting  the  goods,  so  as 
to  see  if  they  correspond  with  the  contract:  Bennett's  Benjamin  on 


Sales,  §  701,  n.  d  ;  citing,  Pew  v.  Lawrence,  27  Up.  Can.  C.  P.  402  ; 
Croninger  ?\  Crocker,  62  N.  Y.  151  ;  Corrigan  v.  Sheffield,  10  Hun, 
2:27  ;  Thobburonn  v.  Lewis,  48  Mich.  6"5  ;  Raffee  ?'.  United  States,  !•">  Ct. 


.  .  .  ,          . 

of  Cl.  2  H  ;  and  quoting,  Pease  v.  Copp,  67  Barb.  132.  An  1  see  2  Corbin's 
Benjamin  on  Sales,  §  1042,  n.  25,  and  §  1049,  n.  4  ;  citing,  Shields  v. 
Reibe,  !)  111.  App.  598. 

3  See  Lorymer  v.  Smith,  1  Barn.  &  C.  1  ;  Couston  v.  Chapman, 
Law  R.  2  H.  L.  S.  250  ;  3  Eng.  Rep.  187  ;  Doane  v.  Dunham,  79  111.  131 

4  See  Isherwood  r.  "Whitmore,   10  Mees.  &  W.  757  :  so  cited,  2 
Schouler  on   Personal  Property,  §  400,  whence  paragraph  derived. 
Right  to  weigh  or  measure  goods  in  course  of  inspection  :  2  Schouler 
on  Personal  Property,  §  406  ;  referring  to  Pettit  r.  Mitchell,  4  Man.  & 
G.  819  ;  stated  at  length  in  Bennett's  Benjamin  on  Salts,  §  702. 

5  Meherin  v.  Ball,  8  Pac.  Rep.  (Cal.)  886  ;  21  The  Reporter,  309. 

§  261.  What  constitutes  acceptance.  —  In  general.  Ac- 
ceptance of  goods  in  the  fullest  sense  maybe  expressed 
by  words  or  acts,1  and  it  is  also  inferable  from  the  facts.2 

Detention  of  goods.  Thus,  a  detention  of  custody  by 
the  buyer  becomes,  by  lapse  of  time,  decisive  to  show 
acceptance,  since  if  the  buyer  means  for  cause  not  to 
accept  the  goods,  it  is  his  duty  to  promptly  reject  them, 
and  to  throw  them  back  upon  the  seller  ;  3  and  hence  a 
retention  of  wool  for  three  days  before  objecting  to  de- 
lay in  delivery,  and  for  six  weeks  before  finding  out  the 
seller's  address,  and  notifying  him  of  the  refusal  to  ac- 
cept, has  been  held  to  render  the  buyer  liable  for  the 
price;4  and  a  period  of  seven  weeks,  when  one  would 
have  sufficed,  has  been  thought  too  long  for  examining 
large  lots  of  wine  sold  by  sample.5 

Exercise  of  acts  of  ownership.  Still  more  conclusive 
upon  the  buyer  is  a  detention  of  custody  accompanied 
by  the  exercise  of  acts  of  ownership  over  the  chattels, 
such  as  the  attempt  to  sell  the  property  over  as  one's 
own  before  giving  notice  of  non-acceptance  ;6  and  even 
where  one  entirely  disclaims  that  he  has  ordered  goods, 


§  262  ACCEPTANCE.  372 

he  becomes  liable  if  he  exercises  acts  of  ownership  over 
them,  instead  of  returning  them,  or  notifying  the  sender 
to  take  them.7 

Acts  conflicting  with  words.  But  whether  the  buyer 
has  accepted  the  goods  or  not,  must  depend  upon  all 
the  facts,  and  not  upon  words  alone,  which  are  not 
borne  out  by  the  buyer's  own  conduct.8  Xor  can  the 
buyer's  refusal  of  acceptance  avail  him  when  he  has 
exposed  himself  to  the  imputation  of  playing  fast  and 
loose,  declaring  that  he  will  not  accept  the  goods,  but 
at  the  same  time  preventing  the  seller  from  dealing 
with  them  as  his  own.9 

1  See  1  Bouvier  Law  Diet.  (14th  ed.)  47. 

2  2  Schouler  on  Personal  Property,  §  "07,  referring  for  evidence 
hell  insufficient  to  establish  a  knowing  acceptance  by  the  buyer,  to 
Gowing  v.  Knowles,  118  Mass.  232. 

3  See  Bianchi  v.  Nash,  1  Mees.  &  W.  545 ;  Couston  v.  Chapman, 
Law  R.  2  H.  L.  S.  250 ;  3  Eng.  Rep.  187 ;  Treadwell  v.  Reynolds,  39 
Conn.  31 ;  Boughton  v.  Standish,  48  Vt.  504  ;  liirshhorn  v.  Stewart,  49 
Iowa,  418  ;  Story  on  Sales,  §  404  ;  Bennett's  Benjamin  on  Sales,  §  703  ; 
2  Parsons  on  Contracts,  221 ;  2  Schouler  on  Personal  Property,  \  407, 
whence  paragraph  derived. 

4  Treadwell  v.  Reynolds,  39  Conn.  31.     Retention  of  wool  not 
graded  rieece  by  fleece  :  Meherin  v.  Ball,  8  Pac.  Rep.  (Cal.)  836. 

5  Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250 ;  3  Eng.  Rep.  187. 
But  a  usage  of  the  Liverpool  corn  market,  allowing  the  buyer  but 
one  day  to  object  that  corn  sold  was  not  equal  to  the  sample,  was 
held  to  be  reasonable  :  Sanders  v.  Jameson,  2  Car.  &  K.  557;  stated, 
Bennett's  Benjamin  on  Sales,  §  703. 

6  See  Parker  v.  Palmer,  4  Barn.  &  Aid.  387  ;  Chapman  v.  Morton, 
It  Mees.  &  W.  534  ;  Bennett's  Benjamin  on  Sales,  f?  70">,  704  ;  Story 
on  Sales,  §  405  ;  2  Schouler  on  Personal  Property,  §  407,  whence  para- 
graph derived  ;  citing,  also,  Delamatcr  v.  Chappoll.  43  Md.  244.    A  sale 
of  part  of  the  property  by  the  buyer  is  an  acceptance :   Hills  v.  Mc- 
Donald, 19  "Wis.  97 ;  as  cited,  2  Corbin's  Benjamin  on  Sales,  §  1051, 
n.  5. 

7  See  Bartholomae  r.  Paull,  18  \V.  Va.  771 ;  Wellauer  v.  Fellows, 
48  Wis.  105. 

8  2  Schouler  on  Personal  Property,  £  407. 

9  Chapman  r>.  Morton,  11  Mees.  &  W.  5°4  ;  Bennett's  Benjamin  on 
Sales,  §703.    See  2  Schouler  on  Personal  Property,  407;  stating  and 
quoting,  also,  Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250  ;  3  Eng.  Rep. 

I  262,  Eight  of  rejection.  —  For  divergence  from  de- 
scription. The  buyer  may  reject  the  goods  as  soon  as 


373 


ACCEPTANCE.  §   263 


he  has  time  and  opportunity  to  examine  them,1  if  they 
do  not2  answer  the  description.3 

Not  after  inspection  and  acceptance.  But  after  in- 
spection and  acceptance 4  the  buyer  cannot,  in  general, 
change  his  mind  and  reject.5 

Where  to  be  exercised.  And  where  the  contract  was 
for  cedar  posts,  to  be  delivered  on  board  of  vessels  to 
be  provided  by  the  buyer,  it  was  held  that  the  posts 
must  be  accepted  or  rejected  at  the  place  of  shipment, 
and  that  the  buyer  could  not  inspect  and  reject  at  the 
end  of  the  voyage.6 

1  Right  of  inspection  :  See  \  260. 

2  Divergence  in  quality,  etc. :  See  \  260. 

3  See  Boughton  v.  Standish,  48  Vt.  594  ;  Knoblauch  v.  Kronsch- 
nabel,  18  Minn.  300;  Simpson  v.  Krumdick,  28  Minn.  852  ;  Doane  v. 
Dunham,  7'.)  111.  KH  ;  2  Corbin's  Benjamin  on  Sales,  \  1051,  n.  5,  citing 
these  cases  in  support  of  text. 

4  Acceptance  in  general :  \  257. 

5  See  Carondelet  Iron  Works  v.  Moore,  78  111.  65,  69;  2  Corbin's 
Benjamin  on  Sales,  \  1051,  n.  5  ;  §  977,  n.  29 ;  and  g  966,  n.  23. 

6  Brownlee  v.  Bolton,  44  Mich.  218  ;  as  stated,  2  Corbin's  Benjamin 
on  Sales,  $  1051,  n.  5. 

\  263.  Buyer's  course  on  rejection.  —  Getting  rid  of 
custody,  etc.  The  buyer  should  put  his  refusal  of  ac- 
ceptance so  plainly  and  so  promptly  before  the  seller, 
as  to  leave  no  doubt  of  his  real  intention  in  the  prem- 
ises, and  get  rid  of  the  custody  of  the  goods  as  soon  as 
possible,  unless  he  has  concluded  to  keep  them.1  Thus, 
it  has  been  laid  down  that  where  a  party  desires  to 
rescind  a  purchase  upon  the  ground  that  the  quality 
of  the  goods  does  not  correspond  with  the  sample,2  it  is 
his  duty  to  make  a  distinct  offer  to  return,  or  in  fact,  to 
return  the  goods,  by  stating  to  the  vendor  that  the 
goods  are  at  his  risk ;  that  they  no  longer  belong  to  the 
purchaser;  that  the  purchaser  rejects  them;  that  he 
throws  them  back  on  the  vendor's  hands  ;  and  that  the 
contract  is  rescinded.3 

NEWMARK  SALES. —32. 


g   264  ACCEPTANCE.  374 

When  delay  alone  excusable.  And  it  is  only  where 
the  buyer,  by  some  artifice  of  the  seller,  or  under  other 
circumstances  imputing  to  himself  no  negligence,  is 
really  deprived  of  his  proper  opportunity  to  examine,4 
that  his  right  of  acceptance,  after  the  seller  has  tendered 
delivery,  may  long  remain  in  abeyance.5 

Informal  notice  of  non-acceptance.  But  on  the  other 
hand,  the  buyer  who  means  to  refuse  acceptance  for  cause 
is  not  narrowed  to  a  technical  performance  of  his  duty.6 
Thus  where  the  buyer  met  the  seller  on  the  day  of  deliv- 
ery, and  told  him  that  the  goods  delivered  were  still  on 
his  premises,  that  they  were  bad,  that  he  would  not  have 
them  or  pay  for  them,  and  that  the  seller  might  do  what 
he  liked  with  them,  it  was  held  that  he  had  sufficiently 
performed  his  duty,  and  was  not  liable  for  the  price.7 

1  Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250  ;  3  Eng.  Rep.  187 ;  as 
cited  in  support  of  text  in  2  Sohouler  on  Personal  Property,  2  408. 
And  compare  Story  on  Sales,  \  405. 

2  Sales  by  sample :  See  under  chapter  on  WARRAXTY. 

3  Couston  v.  Chapman,  Law  R.  2  II.  L.  S.  250 ;  3  Eng.  Rep.  187. 

4  See  §  260,  on  RIGHT  OF  IXSPECTIOX. 

5  2  Schouler  on  Personal  Property,  §  408,  referring  to  Putchess 
Co.  v.  Harding,  49  N.  Y.  321. 

6  2  Schouler  on  Personal  Property,  g  408.    For  the  real  object  of 
the  law,  with  the  fulfillment  of  which  it  is  satisfied,  is  that  the  other 
party  shall  receive  such  formal  and  distinct  notice  of  non-acceptance 
that  he  may  secure  his  own  interests,  and  perform  seasonably  what 
is  incumbent  upon  him  in  return  :  2  Schouler  on  Personal  Property, 
g  408.    Consult,  also,  Story  on  Sales,  $  405. 

7  Grimoldby  v.  Wells,  Law  R.  10  Com.  P.  391 ;  12  Eng.  Rep.  451  ;  as 
stated,  2  Schouler  on  Personal  Property,  \  407,  where  note  is  made  of 
the  statement  in  this  case  that  the  buyer  need  not  offer  to  send  the 
goods  back,  nor  place  them  in  neutral  custody,  bnt  comparison  is 
suggested  in  this  point,  of  Couston  v.  Chapman,  Law  R.  2  II.  L.  S.  250  ; 

.3  Eng.  Rep.  187. 

$  264,  Seller's  waiver  of  notice,  etc.  —  Doctrine  and 
illustration.  The  seller  may  have  waived  strict  notice 
of  non-acceptance  and  return  of  the  goods  by  entering 
into  some  special  arrangement  inconsistent  with  enforc- 
ing such  requirements.1  Thus  where  the  buyer  and 
the  seller's  agent  agree  that  if  the  goods  sent  are  not 


375  ACCEPTANCE.  g   265 

satisfactory  the  buyer  need  not  accept  them,  but  shall 
retain  them  until  the  agent  returns  to  the  buyer's  shop, 
the  buyer  is  excused  from  giving  an  earlier  notice  of 
his  refusal  to  accept.2 

Seller's  agreement  to  alter  article.  And  where  shutters 
are  put  up,  to  which  the  buyer  objected  and  the  seller 
agreed  to  alter  them  so  as  to  correspond  with  the  order, 
the  seller  must  do  as  he  promised  before  suing  for 
payment.3 

1  2  Schouler  on  Personal  Property,  ?  409,  whence  next  two  para- 
graphs also  derived.    And  consult  2  Corbin's  Benjamin  on   Sales, 
g  1052,  n.  6 ;  citing,  Wartmun  v.  Breed,  117  Mass.  18. 

2  Suit  v.  Bonnell,  33  Wis.  180.    See  Kahn  v.  Klabunde,  50  Wis.  235. 

3  Belt  v.  Stetson,  26  Minn.  411 ;  also  noted,  Bennett's  Benjamin  on 
Sales,  §  70-1,  n.  q. 

§265,  Buyer's  waiver  of  objections. — By  delay.  Waiver 
of  objections  turning  receipt  into  acceptance  may  be 
inferred  from  delay  to  object.1 

Receipt  after  time  limited.  And  receipt  after  the  time 
lirm'ted  is  a  waiver  of  objections  and  damages,  because 
of  the  delay  to  deliver.2 

To  delivery  of  instalment.  Although  acceptance  with- 
out objection  after  inspection  will  preclude  the  buyer 
from  rejecting  the  goods  or  avoiding  the  contract,  yet 
acceptance  of  an  instalment  of  inferior  goods,8  will  not 
warrant  the  seller  to  continue  to  deliver  inferior  goods  ;  * 
though  if  the  buyer  improperly  refuses  to  accept  a  de- 
livery of  part,  the  seller  is  excused  from  tendering  the 
whole.5 

1  See  Reed  v.  Randall,  29  N.  Y.  358;  36  Am.  Dec.  305  ;  Gaylord 
Manuf.  Co.  v.  Allen,  53  N.  Y.  515  ;  Watkins  v.  Paine,  57  Ga.  50  ;  Owens 
v.  Sturges,  67  111.  £66  ;  Hadley  v.  Prather,64  Ind.  K7 ;  Barton  v.  Kane, 
17  Wis.  87;  18  Wis.  21VJ;  Paige  v.  McMillan,  41  Wis.  337;  Kahn  v. 
Klabunde,  50  Wis.  2;i5 ;  Gaff  v,  Hemeyer,  59  Mo.  345;   2  Corbin's 
Benjamin  on  Sales,  ?  1051,  n.  5,  citing  these  cases  in  support  of  text. 

2  Baker  v.  Henderson,  24  Wis.  509;  Bock  v.  Healey,  8  Daly,  156  ;  2 
Corbin's  Benjamin  on  .Sales,  \  1051,  n.  5  ;  referring,  also,  to  Adams  v. 
Helen,  55  Mo.  4G8.    So  delivery  after  the  time  is  a  waiver  of  daiuair-  s 
for  refusal  to  receive  within  the  time  limited :  Gibbons  v.  United 
States,  2  Ct.  of  Cl.  421. 


I  266  ACCEPTANCE.  376 

3  See  \  267,  on  DELIVERY  BY  INSTALMENTS. 

4  See  Cahen  v.  Platt,  69  N.  Y.  348  ;  25  Am.  Rep.  203  ;  Kipp  v.  Meyer, 
5  Hun,  111. 

5  Hughes  v.  United  States,  4  Ct.  of  Cl.  64.    See  2  Corbin's  Benjamin 
on  Sales,  §  1051,  n.  5,  whence  paragraph  derived. 

§  266.  Divergence  in  quality,  etc.  —  Finality  of  accept- 
ance. Where  the  act  of  final  acceptance  is  once  com- 
pleted under  a  contract  of  sale,  the  buyer  is  precluded 
from  afterwards  asserting  that  the  goods  were  not  of 
the  quality  or  quantity  agreed,1  unless  he  can  show 2 
fraud,3  or  a  warranty.4 

Goods  of  various  qualities,  etc.  And  this  rule  holds 
true,  even  though  the  goods  contracted  for  were  to  be 
of  various  qualities,  and  situated  in  various  places  ;5  as 
where  in  a  sale  of  lumber  at  so  much  for  "prime,"  so 
much  for  " merchantable,"  and  so  much  for  "refuse," 
a  buyer  had  receipted  for  a  described  quantity  of  each, 
after  full  opportunity  to  examine  the  entire  lot.6 

Retaining  defective  goods,  etc.  Where  the  contract  is 
executory,  it  has  been  held  that  the  assumed  implica- 
tion that  the  property  is  of  a  merchantable  quality,  is 
to  be  treated  as  a  condition  rather  than  a  warranty,  as 
to  defects  obvious  upon  inspection  and  discoverable 
when  the  contract  wras  performed  by  the  delivery  of  the 
property.7  And  the  receiving  and  retaining  of  the  prop- 
erty under  the  contract  with  knowledge  of  such  defects, 
though  under  objection  as  to  the  defective  quality  of 
the  property,  has  the  effect  of  an  acceptance  of  the 
property  delivered,  as  a  performance  of  the  executory 
contract,  and  a  waiver  of  the  implied  condition.8 

No  waiver  of  objection.  But  where  one  party  entered 
into  a  written  contract  with  another  to  sell  and  deliver 
to  the  latter  within  a  specified  time,  ninety  head  of 
smooth  and  fat  hogs,  to  weigh  on  an  average  two  hun- 
dred and  forty  pounds  each,  and  several  days  before 
the  seller  was  to  deliver  the  hogs  he  informed  the  buyer 


377  ACCEPTANCE.  \  267 

that  the  hogs  were  too  light  and  too  rough  to  comply 
with  the  contract,  but  the  buyer  did  not  object  to  the 
hogs  on  those  grounds,  it  was  held  that  his  failure  to 
object  at  that  time  was  not  a  waiver  by  him  as  to  the 
fatness  and  smoothness  of  the  hogs,  if  at  the  time  the 
seller  offered  to  deliver  the  hogs,  the  buyer  objected  to 
receiving  them  under  the  contract.9 

1  2  Schouler  on  Personal  Property,  \  410. 

2  See  fetory  on  Fales,  \  406. 

3  See  generally  chapter  on  FRAUDULENT  SALES. 

4  See  generally  chapter  on  WARRANTY. 

5  See  citations  in  next  note. 

6  See  McCormick  v   Sarson,  45  N.  Y.  265  ;  so  cited  in  support  of 
text,  in  2  Schouler  on  Personal  Property,  §  410 ;  referring,  also,  to 
Gilson  v  Bingham,  43  Vt  410 

7  Thompson  v  Libby  20  N.  W.  Hep.  (Minn.)  150. 

8  Thompson  ? .  Libby,  29  N.  W.  Rep.  (Minn.)  150  ;  relying  upon 
Haase  v.  Nonnemacher,  21  Minn.  486,  and  cases  cited  ;  Maxwell  v. 
Lee,  27  N  W.  Rep  196;  Gaylord  Manuf.  Co.  v.  Allen,  53  N.  Y.  515; 
Xocke  v  Williamson,  40  Wis.  377  ;  Olson  v.  Mayer,  56  Wis.  551. 

9  Dowell  v.  Williams,  33  Kan.  319. 

§  267.  Where  delivery  by  instalments. —  When  rejection 
not  barred.  Where  delivery  is  madfe  by  instalments, 
the  buyer's  acts  of  acceptance  should  naturally  corre- 
spond;1 so  that  the  buyer's  acceptance  of  the  first  in- 
stalment will  not  debar  him  from  rejecting,  on  proper 
grounds,  the  portions  subsequently  delivered.2 

New  terms  of  acceptance.  But  of  course  a  buyer  may 
acquiesce  in  modifications  of  the  original  contract  of 
delivery,  so  as  to  be  bound  to  new  terms  of  acceptance, 
as  frequently  happens  under  instalment  contracts.3 

Return  of  parcels  first  received.  As  a  buyer  may  re- 
fuse to  take  less  than  the  quantity  delivered,4  so  he 
may  return  the  parcels  first  received,  where  a  whole 
quantity  was  ordered  to  be  delivered  from  time  to  time, 
and  the  latter  deliveries  are  not  duly  made.5 

1  See  citations  in  next  note. 

2  See  Hubbard  ? .  George,  49  111.  275  ;  as  cited  in  support  of  text, 
In  2  Schouler  on  Personal  Property,  \  410.    Like  effect :  2  Corbiu'a 


\  268  ACCEPTANCE.  378 

Benjamin  on  Sales,  ?  1051,  n.  5 ;  citing,  Cahen  v.  Plait,  69  N.  Y.  848  ; 
25  Am.  Rep.  203  ;  Kipp  v.  Meyer,  5  Hun,  111 ;  Hughes  v.  United  States, 
i  Ct.  of  Cl.  64. 

3  See  Haines  v.  Tucker,  50  N.  H.  307  ;  A  very  r.  Willson,  81  N.  Y. 
841 ;  37  Am.  Hep.  503 ;  2  Schouler  on  Personal  Property,  \\  390,  410, 
making  these  citations  in  support  of  text. 

4  Consult  \  235,  on  QUANTITY  DELIVERED. 

5  See  Oxendale  v  Wetherell,  9  Barn.  &  C.  386  ;  Bowes  v.  Shand, 
Law  R.  2  App  C.  455  ;  Reuter  v.  Sala,  Law  R.  4  C.  P.  D.  239  ;  30  Eng. 
Rep  518,  Marlandv  Stan  wood,  101  Mass.  470;  1  Schouler  on  Personal 
Property  §  390 ;  2  Schouler  on  Personal  Property,  \  410 ;  referring, 
also,  in  support  of  text,  to  Honck  v.  Muller,  45  L.  T.  202  ;  S.  C.  Law 
R.  7  Q.  B  D.  92  ;  36  Eng.  Rep.  264.    But  where  delivery  is  tendered 
for  the  purpose  of  fulfilling  the  seller's  contract  in  part,  the  buj'er 
cannot  take  and  hold  the  goods  tendered  for  any  other  purpose: 
Burrill  v.  Sampson.  73  Me.  286. 

g  268,  Article  to  be  satisfactory,  etc.  —  Good  faith  of 
rejection.  If  the  rejection  of  coal  condemned  as  un- 
satisfactory by  a  railroad  company's  masters  of  ma- 
chinery and  transportation,  to  whom  it  was  to  be 
satisfactory  in  quality,  is  not  made  in  good  faith,  and 
in  the  exercise  of  an  honest  judgment,  it  will  not  be 
a  sufficient  justification  to  the  railroad  company  for 
refusing  to  continue  to  receive  the  coal.1 

Rejection  after  trial.  Where  the  contract  by  which  a 
village  agrees  to  purchase  a  steam  fire-engine  and  attach- 
ments provides  for  the  payment  of  the  first  instalment 
of  the  purchase  money  at  the  date  of  acceptance  of  the 
property,  and  at  the  request  of  the  vendee,  the  vendor 
sends  one  of  its  employees  to  assist  at  the  trial  of  the 
engine,  the  nature  of  the  machinery  making  a  trial  neces- 
sary to  determine  its  fitness  for  the  purposes  required, 
it  was  held  that  the  acceptance  was  to  be  after  trial,  not 
when  placed  upon  the  cars  at  the  place  of  manufacture  ; 2 
and  that  upon  a  rejection  of  the  engine,  the  vendor 
could  not  recover  in  assumpsit  for  the  purchase  money.3 

1  Baltimore  <fe  O.  R.  Co.  v.  Brydon,  3  Atl.  Rep.  (Md.)  306  ;  follow- 
ing, Lynn  v.  Baltimore  <fc  O.  R.  Co.  60  Md.  404. 

2  Mansfield  Machine  Works  v.  Village  of  Lowell,  29  N.  W.  Rep. 
(Mich.)  105 ;  referring  to  Cole  v.  Homer,  5:i  Mich.  438  ;  19  N.  W.  Rep.  135. 

3  Mansfield  Machine  Works  v.  Village  of  Lowell,  29  N.  W.  Rep. 
(Mich.)  105.    Though  he  might  have  a  remedy  in  an  action  for  breach 
of  contract  and  refusal  to  accept:   Mansfield  Machine  Works  v. 
Lowell,  29  N.  W.  Rep.  105. 


379 


PAYMENT. 


CHAPTER  XIX. 

PAYMENT. 

?  269.  Payment  in  general. 

$  270.  Payment  in  cash. 

g  271.  Payment  in  negotiable  paper. 

2  272.  Credit  sales. 

\  273.  Mode  of  making. 

$269,  Payment  in  general.  —  Signification.  Payment 
in  its  most  general  sense  covers  the  accomplishment 
of  every  obligation,  but  in  a  more  restricted  sense,  pay- 
ment is  the  discharge  in  money  of  a  sum  due.1 

Buyer's  duty.  And  the  last  duty  of  the  buyer,  which 
is  quite  commonly  the  final  act  of  performance  of  the 
contract  of  sale,2  is  to  pay  for  the  goods  bought3  in  con- 
form i^  with  the  terms  of  the  bargain.4 

Modes  of  payment.  Payment  of  the  price  may  be 
arranged  for  in  three  ways :  in  cash,  in  negotiable 
securities,  or  on  credit.5  And  the  mode  of  payment  in 
any  case  will  depend  upon  the  agreement,  express  or 
implied,  of  the  parties,6  neither  of  whom  can  claim  the 
sole  right  to  vary  it,  though  optional  modes  of  payment 
are  sometimes  agreed  upon.7 

1  2  Bouvier  Law  Diet.  tit.  Payment  (15th  ed.),  392.  fully  discussing 
scope  of  term.    And  consult  cases  collected  in  Winneld's  Words  etc. 
454,  4.r)5;  2  Abbott's  Law  Diet.  258.    Payment  of  1  ess  sum  than  due : 
Jones  v.  Perkins,  29  Miss.  1.39  ;  64  Am.  Dec.  136,  n.  138. 

2  See  Fitzpatrick  v.  Fain.  3  Cold.  15, 19. 

3  See  Martineau  v.  Kitching,  Law  R.  7  Q.  B.  436,  449 ;  2  Eng.  Rep. 
539,  552. 

4  2  Schouler  on  Personal  Property,  3  411.  Where  goods  destroyed : 
Castle  v.  Playford,  Law  R.  7  Ex.  98,  100;  1  Eng.  Rep.  204,  207.    Time 
of  payment :  See  Terwilliger  v.  Murphy,  104  Ind.  32 ;  Schenectady 
Stove  Co.  v.  Holbrook,  4  N.  E.  Rep.  4  ;  2  Schouler  on  Personal  Prop- 
erty, §  415;  stating,  Brandon  Manuf.  Co.  v.  Morse,  48  Vt.  322  ;  Lowry 
v.  Barellj,2l  Ohio  St.  324  ;  Beauchamp  v.  Archer.  58  Cal.  431 :  41  Am. 
Rep.  266.    Payment  in  general  discussed  :  2  Bouvier  Law  Diet  (14tn, 
ed.)  311 ;  2  Greenl.  Ev.  (14th  ed.)  ft  516,  536. 


gg   270-271  PAYMENT.  380 

5  See  succeeding  sections  of  chapter  on  these  various  modes  of 
payment. 

6  See  Brady  v.  Wasson,  6  Heisk.  135  ;  as  noted,  Winfield's  Words 
etc.  455. 

7  2  Schouler  on  Personal  Property,  §  411.    Compound  or  optional 
payment  in  part  cash  and  part  credit  or  notes  :  2  Schouler  on  Per- 
sonal Property,  §  421  :  citing,  Rugg  v.  Weir,  16  Com.  B.  N.  S.  471  ; 
Gray  v.  White,  108  Mass.  228.    Option  to  pay  in  specific  chattels : 
Cummings  v .  Dudley,  60  Cal.  383  ;  44  Am.  Hep.  58. 

£  270.  Payment  in  cash.  —  In  general.  Cash  payment 
means  the  opposite  of  credit ;  *  and  a  sale  for  cash  means 
that  the  money  is  paid  when  the  property  is  delivered.2 

Where  contract  silent.  Where  nothing  is  said  at  the 
time  of  purchase  of  goods  about  payment,  the  law  pre- 
sumes that  the  sale  is  for  cash,3  and  payment  and  de- 
livery are  immediate  and  concurrent  acts.4 

Demand  of  price.  And  in  such  cases  it  is  said  that 
the  buyer  ought  not  to  wait  until  a  demand  is  made 
upon  him  for  the  price,  but  to  offer  that  payment  with- 
out which  he  can  have  no  right  to  remove  the  goods.5 

1  Foley  v.  Mason,  6  Md.  37;  as  noted,!  Abbott's  Law  Diet.  189; 
referring,  also,  to  Steward  v.  Scudder,  24  N.  J.  L.  96.    Scope  of  term 
"  cash  '  :  1  Bouvier  Law  Diet.  (15th  ed.)  288. 

2  Bliss  v.  Arnold,  8  Vt.  255;  as  noted,  Winfield's  Words  etc.  549. 
And  see  Turner  v.  Moore,  58  Vt.  455,  456  ;  3  Atl.  Rep.  467. 

3  See  Bobbins  v.  Harrison,  31  Ala.  160, 169. 

4  Southwestern  Freight  etc.  Co.  v.  Plant,  45  Mo.  517,  519.    And  see 
Davis  v.  Adams,  18  Ala.  264,  207.    Consult,  also,  Coil  v.  Willis,  18  Ohio, 
28,  31 ;  Goldsmith  v.  Bryant,  26  Wis.  34,  38 ;  Clark  v.  Dales,  20  Barb. 
42,  61. 

5  2  Schouler  on  Personal  Property,  §  412.    But  compare  contra, 
Warren  v.  Wheeler,  8  Met.  97, 99. 

§271.  Payment  in  negotiable  paper.  —  By  check.  Pay- 
ment by  check  is  looked  upon  as  a  species  of  cash  pay- 
ment,1 but  the  dishonor  of  the  check2  is  a  breach  of  the 
condition  on  which  it  is  supposed  to  be  taken.3 

By  buyer's  note,  etc.  Where  payment  for  goods  there- 
upon delivered  is  made  in  the  buyer's  promissory  note, 
or  by  his  acceptance  of  a  bill  of  exchange,  it  is  the  doc- 
trine in  England,4  and  in  many  of  the  States  of  the 
Union,  that  there  is,  at  least  prima  facie,6  no  absolute 


381  PAYMENT.  I  271 

discharge  of  the  debt,6  but  a  postponement  of  payment 
only,7  or  conditional  payment,  subject  to  revival  of  the 
seller's  right  of  action  on  non-payment  at  maturity.8 
But  in  some  of  the  States  such  payment  is  pritna  facie 
absolute,9  and  the  intention  of  the  parties  governs  any 
presumption  either  way.10 

Third  party's  note,  etc.  Where  at  the  time  of  the  sale 
and  delivery  of  goods,  the  vendor  receives  from  the 
vendee  a  note  or  similar  obligation  of  a  third  person  for 
the  price,  the  presumption  is  that  he  takes  it  in  pay- 
ment,11 and  it  will  usually  be  regarded  as  taken  in  pay- 
ment, either  by  way  of  cash  or  of  barter,12  unless  a 
different  intent  appears.13 

1  Checks  in  general :  1  Bouvier  Law  Diet.  (14th  ed.)  261. 

2  See  2  Greenl.  Ev.  ?  520 ;  2  Bouvier  Law  Diet.  (14th  ed.)  311 ; 
citing,  2  Parsons  on  Contract,  136. 

3  See  Hodgson  v.  Barrett,  33  Ohio  St.  63  ;  31  Am.  Hep.  527,  discuss- 
ing payment  by  check  ;  2  Schouler  on  Personal  Property,  §  418 ; 
Bennett's  Benjamin  on  Sales,  731 ;  and  2  Corbin's  Benjamin  on  Sales, 
g  1083,  n.  19,  and  cases  cited.    Check  of  third  person :  Fleig  v.  Sleet, 
43  Ohio  St.  51 ;  54  Am.  Hep.  800. 

4  It  is  there  said  that  when  one  speaks  of  paying  In  cash,  that 
means  in  satisfaction;  but  when  by  bill,  that  does  not  import  satis- 
faction, unless  the  bill  is  ultimately  taken  up:  Maillard  v.  Duke  of 
Argyle,  6  Man.  &  G.  45  ;  as  quoted,  Winfield's  Words  etc.  455. 

5  See  Crabtree  v.  Segrist,  6  Pacif.  Kep.  (N.  M.)  2&2, 205. 

6  Promissory  note  not  payment  of  debt  unless  so  agreed  :  Blunt 
v.  Walker,  11  Wis.  334 ;  73  Am.  Dec.  709,  n.  718. 

7  See  citations  in  next  note. 

8  See  Heinbockle  v.  Zugbaum,  5  Mont.  344 ;  51  Am.  Hep.  50,  61 ;  2 
Schouler  on  Personal  Property,  \  419 ;  Bennett's  Benjamin  on  Sales, 
\\  729, 730  ;  2  Corbin's  Benjamin  on  Sales,  \\  1081, 1082  ;  Story  on  Sales, 
\  219  ;  2  Chitty  on  Contracts  (llth  Am.  ed.),  1135,  notes. 

9  See  Crabtree  v.  Segrist,  6  Pac.  Rep.  (N.  M.)  202,  205  ;  citing  prior 
different  doctrine  in  Thacher  v.  Dinsmore,  5  Mass.  299  ;  Whitcomb  v. 
Williams,  4  Pick.  228;   Butts  v.  Dean,  2  Met.  76.     And    consult  2 
Schouler  on  Personal  Property,  g  419  ;  Story  on  Sales,  §  219  ;  lie  Clap, 
2  Low.  226,  230. 

10  See  2  Schouler  on  Personal  Property,  §419  5  2  Corbin's  Benjamin 
on  Sales,  \  1081,  n.  17. 

11  See  Noel  v.  Murray,  13  N.  Y.  167  ;  Youngs  ?>.  Stahelin,  34  N.  Y. 
258,  265. 


12    See  Read  1).  Hutehinson,  3  Camp.  352  ;  Camidge  v.  Allenby,  6 
Barn.  &  C.  373 ;  Guardians  of  Litchfield  v.  Green,  1  Hurl.  &  N.  884. 

P- 

" 


13  See  Allen  v.  Buntel,  2  Thomp.  &  C.  342.  Consult  for  sources  of 
paragraph,  Bennett's  Benjamin  on  Sales,  ?  739  ;  2  Corbin's  Benjamin 
on  Sales,  \  lObl,  n.  17  ;  2  Schouler  on  Personal  Property,  \  420, 


I  272  PAYMENT.  382 

\  272.  Credit  sales.  —  In  general.  Credit  is  said  to 
be  the  time  allowed  by  the  creditor  for  the  payment 
of  goods  sold  by  him  to  the  debtor.1  And  there  is 
said  to  be  a  sale  on  credit  when  property  is  sold  with- 
out any  expectation  of  immediate  payment,  irrespect- 
ive of  the  length  of  time  for  which  the  payment  is 
deferred.2 

Effect  of.  If  goods  are  sold  upon  credit,  and  nothing 
is  agreed  upon  as  to  the  time  of  delivering  the  goods, 
the  vendee  is  immediately  entitled  to  the  possession, 
and  the  right  of  possession  and  right  of  property  vest 
at  once  in  him,3  though  his  right  of  possession  is  not 
absolute,  but  is  liable  to  be  defeated  if  he  becomes 
insolvent  before  he  obtains  possession.4 

Time  of  payment  under.  The  buyer  is  not  obliged  to 
pay  before  the  expiration  of  the  term  of  credit,  nor  is 
he  previously  subject  to  suit  upon  his  note  given  to  the 
seller  in  postponement  of  payment.5  But  where  no 
time  of  credit  definitely  fixed  by  express  agreement  or 
custom  can  clearly  be  shown,  payment  is  due  on  the 
seller's  demand,  and  the  seller  should  put  the  buyer  in 
default  by  sending  his  bill  or  other  notification  that  he 
desires  settlement  for  the  goods.6 

1  1  Bouvier  Law  Diet.  (15th  ed.)  454. 

2  Anst«fltr.  S'ltter,  30  111.  164, 16fi.    Authority  of  agent  to  sell  on 
credit:  See  1  Chitty  on  Contracts  (llth  Am.  ed.),  2a5,  n.  y  \  Bennett's 
Benjamin  on  Sales,  \  143,  n.  c ;  citing,  also,  Dresden  School  Dist.  v. 
JEtna  Ins.  Co.  62  Me.  3."O,  und  cases  cited  ;  Riley  v.  Wheeler,  44  Vt. 
18J ;  Daylight  Burner  Co.  v.  Odlin,  51  N.  H.  56,  59,  60  ;  Parsons  v.  Mar- 
ti'i,  11  Gray,  115;  Bowman  7-.  Brown,  3  Q.  B.  511.    Term,  proof,  etc., 
of  credit :  2  Schouler  011  Personal  Property,  \  422. 

3  Bloxam  v.  Sanders,  4  Barn.  &  C.  941 ;  Boss'  Leading  Cases,  4. 

4  Bloxam  v.  Sanders,  4  Barn.  &  C.  941 ;  Ross'  Leading  Cases,  4  ; 
citing,  Tooke  r.  Hoi  lings  worth,  5  Term  Rep.  215.    And  see  2  Kent 
Com.  4!)3 ;  Leonard  v.  Davis,  1  Black,  476,  483  ;  §  159,  on  RIGHT  OF 
POSSESSION. 

5  See  Story  on  Sales,  \  422  ;  2  Schouler  on  Personal  Property, 
?  422  ;  citing,  also,  Stedman  r.  Gooch,  1  Esp.  5  ;  Rugg  v.  Weir,  16  Com. 
B.  N.  S.  471 ;  Rice  v.  Andrews.  32  Vt.  691.    Consult  further  Bennett's 
Benjamin  oti  Sales,  §  765  ;  1  Chitty  on  Contracts  (llth  Am.  ed.).  615, 
n.  r,  and  cases  cited.     Failure  to  furnish    negotiable   security  as 
agreed ;  See  lust  two  of  cases  above  cited.    Effect  of  buyer's  notice 


383  PAYMENT.  §   273 

of  inability  to  pay  before  expirations  of  credit :  Keller  v.  Strasburger, 
90  N.  Y.  379. 

6  2  Schouler  on  Personal  Property,  \  422,  referring  to  Hodgson  v. 
Davies,  2  Camp.  530. 

\  273.  Mode  of  making.  —  In  general.  In  regard  to 
the  mode  of  making  payment,  it  may  be  by  any  lawful 
method  agreed  upon  between  the  parties,  and  fully 
executed.1 

Not  in  cash.  And  the  buyer's  common  obligation  to 
pay  cash  is  capable  of  being  varied  by  circumstances, 
according  to  the  different  phases  of  intent  in  a  contract.2 
Thus  there  may  be  payment  by  assumption  of  certain 
debts  of  the  seller,3  by  set-off  on  an  account  stated,4  or 
in  chattels  at  the  option  of  the  buyer.5 

Tender,  etc.  Not  only  will  payment  relieve  the  buyer 
from  liability  under  the  contract,  but  a  tender  of  what 
is  due  may  be  sufficient;6  and  in  regard  to  payment 
and  tender  under  a  sale,  constant  application  is  made 
of  the  ordinary  rules  regulating  relations  between 
debtor  and  creditor.7 

1  2  Greenl.  Ev.  §  519.    Payment  through  agents :  2  Schouler  on 
Personal  Property,  ?§  423-425.    Transmission  of  payment :  Bennett's 
Benjamin  on  Sales,  §710;  2  Corbin's  Benjamin  on  Sales,  §  1095,  n.  5  ; 
2  Schouler  on  Personal  Property,  §  416.    And  consult  following  cases 
cited  by  these  writers:  Warwick  v.  Noakes,  Peake,  68,  98;  Wake- 
field  ?'.  Lithgow,  3  Mass.  249  ;  Crane  v.  Pratt,  12  Gray,  348,  349  ;  Gurney 
v.  Howe,  9  Gray,  404,  408  ;  First  Nat.  Bank  v.  McMonigle,  69  Pa.  St. 
156 ;  Morgan  v.  Richardson,  13  Allen,  410 ;  Williams  v.  Carpenter,  36 
Ala.  9;  Gordon  v.  Strange.  1  Ex.  477  ;  Caine  v.  Coulson,  1  Hurl.  &  C. 
764  ;  Holland  v.  Tyns,  56  Ga.  56 ;  Hawkins  v.  Butt,  Peake,  186,  248 ; 
also,  2  Greenl.  Ev.  §  525 ;  2  Bouvier  Law  Diet.  (14th  ed.)  311,  313. 

2  2  Schouler  on  Personal  Property,  §  416. 

3  See  Soustiby  v.  Keeley,  11  Fed.  Rep.  578. 

4  See  Livingstone  v.  Whiting,  15  Q.  B.  722  ;  19  Law  J.  Q.  B.  528. 

5  See  Cummings  v.  Dudley,  60  Cal.  383  ;  44  Am.  Rep.  58.    Consult 
further,  Bennett's  Beniamin  on  Sales,  $  1002 ;  2  Corbin's  Benjamin  on 
Sales,  $  1062,  n.  6,  and  1063,  n.  7  ;  2  Schouler  on  Personal  Property,  g  416. 

6  Tender  fully  discussed :  2  Bouvier  Law  Diet.  (14th  ed.)  581 ;  2 
Greenl.  Ev.  600-611. 

7  2  Schouler  on  Personal  Property,  ?  416.    Appropriation  of  pay- 
ments :  2  Greenl.  Ev.  §§  529-536  ;  Bennett's  Benjamin  on  Sales,  §§  746* 
750,  notes  ;  2  Corbin's  Benjamin  on  Sales,  \\  1104-1109,  notes. 


274  STATUTE   OF  FRAUDS.  384 


CHAPTER  XX. 

STATUTE    OF   FRAUDS. 

§  274.  In  general. 

\  275.  Contracts  covered. 

§  276.  Things  attached  to  the  soil. 

g  277.  Incorporeal  personalty. 

J  278.  Prescribed  amount. 

\  279.  Earnest  or  part  payment 

\  280.  Delivery. 

$  281.  Acceptance  and  receipt. 

\  282.  Acceptance. 

J  283.  What  constitutes  acceptance. 

\  284.  Actual  receipt. 

\  285.  Intervention  of  carriers, 

§  286.  Memorandum  in  general. 

\  287.  Form  of  memorandum. 

\  288.  Contents  of  memorandum. 

\  289.  Parol  evidence  concerning  memorandum. 

\  290.  Modification  of  original  bargain. 

§  291.  Signature  to  memorandum. 

\  292.  Compliance  by  agents 

\  293.  Broker's  memorandum. 

§274,  In  general.—  Changes  common  law.  Although 
at  common  law  consent  alone  was  sufficient  to  constitute 
a  valid  sale,  yet  the  statute  of  frauds  has  now  intervened, 
and  other  formalities  are  prescribed  to  make  the  transfer 
valid.1 

Purpose.  The  purpose  of  this  celebrated  enactment, 
as  declared  in  the  preamble,  and  gathered  from  its 
provisions,  was  to  prevent  fraud  and  falsehood,  by  re- 
quiring a  party  who  seeks  to  enforce  an  oral  contract 
in  court  to  produce,  as  additional  evidence,  some  written 
memorandum  signed  by  the  party  to  be  charged,2  or 
proof  of  some  act  confirmatory  of  the  contract  relied 
on.3 


385  STATUTE   OF   FRAUDS.  §    274 

Provisions  respecting  personal  property.  The  seven- 
teenth section  of  the  statute,  relating  especially  to  sales 
of  personal  property,  provides,  as  originally  enacted, 
that  no  contract  for  the  sale  of  goods,  wares,  or  mer- 
chandises of  the  price  of  ten  pounds  or  upwards,  shall 
be  allowed  to  be  good,4  except  the  buyer  shall  accept 
part  of  the  goods  so  sold,  and  actually  receive  the  same, 
or  give  something  in  earnest  to  bind  the  bargain,  or  in 
part  payment,  or  that  some  note  or  memonandum  in 
writing  of  the  said  bargain  be  made,  and  signed  by  the 
parties  to  be  charged  by  such  contract^  or  by  their 
agents  thereunto  lawfully  authorized.5 

Prevalence.  This  famous  statute  is  not  only  in  force 
throughout  the  British  Empire,  but  forms  the  basis  of 
like  legislation  in  many  of  the  States  of  the  American 
Union.6 

Design  and  operation.  According  to  one  view  of  the 
design  of  the  statute  of  frauds,  sometimes  embodied  in 
legislative  phraseology,  an  oral  contract,  unaided  by 
any  of  the  formalties  mentioned  in  the  seventeenth 
section  as  equivalent  to  writing,  is  totally  and  entirely 
void.7  But  a  different  view  in  vogue  in  England,  which 
has  been  deemed  the  more  correct  position,  is  that  the 
contract  still  exists,  but  that  it  cannot  be  put  in  force, 
or  in  other  words,  that  it  is  valid  but  unenforcible.8 
And  in  this  country  it  has  been  considered  that  the 
statute  does  not  prohibit  an  oral  contract,  or  declare 
that  it  shall  be  void  or  illegal,  unless  certain  formalities 
are  observed  ;9  but  that  it  concerns  the  remedy  only  as 
betTveen  the  parties,  and  affects  the  modes  of  proof  as  to 
all  contracts  within  the  statute,  and  not  the  validity  of 
the  contract  itself.10 

Subsequent  compliance.  So  it  seems  to  be  the  better 
opinion  that  a  contract  of  sale,  where  there  is  no  con- 
temporaneous writing,  may  be  rendered  enforcible  by 
NEWMAKK  SALES.  — 33. 


§   274  STATUTE   OF  FRAUDS.  386 

subsequent  acts  of  compliance  with  the  statute,  regarded 
as  relating  back  to  the  date  of  the  oral  agreement.11 

When  provision  inapplicable.  A  provision  of  the 
statute  of  frauds  declaring  contracts  involving  a  speci- 
fied sum  or  more  to  be  void  in  certain  cases,  has  been 
held  to  have  reference  to  the  sale  of  goods,  the  price  of 
which  amounts  to  such  sum  or  more,  and  to  be  inappli- 
cable where  no  sale  of  property  was  involved  in  the 
contract  in  controversy.12 

1  Cunningham  r.  Ashbrook,  20  Mo.  553, 558.    And  see  Be  Fonclear 
v.  Shottenkirk,  3  Johns.  170, 174 ;  Fancher  v.  Goodman, 29  Barb.  315, 318. 

2  See  later  sections  of  chapter  on  MEMORANDUM. 

3  Townsend  v.  Hargraves,  118  Mass.  325,  334.    And  see  Williams  ?>. 
Robinson,  73  Me.  186  ;  Cusack  v.  Robinson,  1  Best  &  Smith,  299  ; 
Langdell's  Cases  on  Sales,  266,  272.    Origin  of  enactment:  See  Ash  v. 
Ab<1y,  3  Swanst.  664,  Appx.  ;  Wain  ?>.  Warlters,  5  East.  17  ;  Wyndham 
v.  Chetwynd,  1  Burr.  418  ;  Story  on  Sales,  §  256  ;  18  Am.  Law  Rev.  442. 

4  Other  expressions  in  the  enactments  of  some  of  the  States: 
SOP  Browne  on  Statute  of  Frauds  (4th  ed.),  Appx.  ;  Brown  v.  Allen,  35 
Iowa,  306  ;  2  Kent  Com.  494,  n.  a. 

5  See  Stat.  29,  Charles  II.  ch.  3,  \  17  (1677) ;  amended  by  substitu- 
tion of  ''  value  "  for  "  price,"  etc.,  by  Lord  Tenterden's  Act,  9  George 
IV.,  ch.  14.    Consult  2  Kent  Com.  494  ;  Stims,  Am.  Stat.  Law,  p.  462, 
H  41  ;  1  Reed  on  Statute  of  Frauds,  \\  218,  219;  Wood  on  Frauds, 
|.282  J  1  Greenl.  Ev.  (14th  ed.j  \  267  ;  3  Parsons  on  Contracts,  5. 

6  S^e  Browne  on  Statute  of  Frauds  (4th  ed.),  Appx.  ;  1  Bouvier 
Law  Diet.  tit.  Frauds,  Statute  of  (14th  ed.),  614  ;  1  Greenl.  Ev.  (14th  ed.) 
\  262  ;  4  Kent  Com.  (4th  ed.)  96.  n.  6.    In  some  of  the  States  there  are 
mere  verbal  variations  from  the  English  enactment,  and  changes  in 
the  amount  prescribed  ;  in  others  the  statute  is  thrown  into  a  new 
form  ;  and  in  still  others  there  is  no  special  legislation  on  the  subject : 
Soe  2  Sehouler  on  Personal  Property,  jj  429,  p.  430,  n.    And  consult 
S'ims.  Am.  Stat,  Law,  pp.  459.  464,  \\  4140,  4149  ;  1  Reed  on  Statute 
of  Frauds,  218,  221 ;  Wood  on  Frauds,  \  282. 

7  See  1  Smith  on  Contracts,  177  ;  McLean  v.  Nicoll,  7  Jur.  N.  S.  999  ; 
Langdell's  Cases  on  Sales,  487,  489  ;  Marsh  ?>.  Hyde.  3  Gray,  331 ; 
Langc.leirs  Cases  on  Sales,  313.     But   compare  contra,  Hawley  v. 
Keeler,  53  N.  Y.  114  ;  Brown  v.  Allen,  35  Iowa,  306. 

8  See  McLean  v.  Nicoll,  7  Jur.  N.  S.  999  ;  LangdelPs  Cases  on  S^les, 
4S7,  4Sn ;  Bailey  v.  Sweeting,  9  Com.  B.  N.  S.  843,  853  ;  30  Law  J.  Com. 
P.  150;  Langdell's  Cases  on  Sales,  480,  485;  9  Am.   Law   Rev.  4^4. 
Compare,  however,  Noble  v.  Wrard,  Law  R.  1  Ex.  117  ;  Langdell's 
Cases  on  Sales,  520,  523. 

9  Townsend  v.  Hargraves,  118  Mass.  325,  334. 

10  See  Townsend  v.  Hargraves,  118  Mass.  325,  334  ;  Norton  v. 
Simonds,  124  Mass.  19,  21  ;  Arnsmick  v.  Am.  Ins.  Co.  129  Mass.  1H5  ; 
Williams  ?>.  Robinson,  73  Me.  186  ;  Browne  on  Statute  of  Frauds,  ?  115, 
n.  Conflict  of  laws :  See  Leroux  v  Brown,  12  Com.  B.  801.  Prire  note 
unenforcible  where  contract  does  not  comply  with  statute  :  Hooker 
v.  Kuab,  26  Wis.  511.  Basis  of  most  of  foregoing  matter  ;  2  Scliouler 


387  STATUTE   OF  FRAUDS.  §   275 

on  Personal  Property,  ??  42S-435  ;  Bennett's  Benjamin  on  Piles,  \\  90, 
91,  and  notes;  1  Corbin's  Benjamin  on  Sales,  $  Ml,  n.  2  ;  citing  upon 
American  view  of  effect  of  statute,  Smith  ?-.  Smith,  14  Vt.  440  ;  Green 
v.  N.  C.  R.  R.  Co.  77  N.  C.  95  ;  Davis  v.  Inscoe,  84  N.  C.  396  ;  Chicago 
Dock  Co.  ?'.  Kenzie,  4!)  111.  25');  and  Rickard  v.  Cunningham,  10  Neb. 
417.  Consult,  also,  2  Kent  Com.  p.  724,  n.  1. 

11  Sf>e  Bniley  r.  Sweeting,  9  Com.  B.  N.  S.  843  ;  LangrfaU's  Cas^s 
o-i  Sales,  480 ;  Leather  Cloth  Co.  v.  Hieronimus,  Law  R.  10  Q.  B.  140; 
12  Eng.  Rep.  211  ;  Townsend  v.  Hargraves,  118  Mass.  325.    But  compare 
contra,  Bill  v.  Bament,  9  Mees.  &  W.  36 ;  Langdell's  Cases  on  Sales, 
161.     Basis  of  paragraph  :  2  Schouler  on  Personal  Property,  \  433. 
And  consult  Langdell's  Cases  on  Sales,  1035. 

12  Hinkle  v.  Fisher,  104  Ind.  84. 

\  275.  Contracts  covered,  —  Executory  sales.  In  Eng- 
land, prior  to  Lord  Tenterden's  Act,  which  assumed  to 
expressly  cover  such  cases,  there  was  one  line  of  de- 
cisions drawing  a  distinction  between  executory  and 
executed  contracts,  and  followed  in  various  American 
rulings,  which  confined  the  application  of  the  seven- 
teenth section  of  the  statute  of  frauds  to  contracts  for 
the  sale  of  goods  to  be  immediately  delivered,  and  ex- 
cluded agreements  where  the  goods  were  designed  to  be 
delivered  at  some  future  time,  but  were  not  yet  exist- 
ing or  fit  for  delivery.1  And  it  appears  to  be  the  New 
York  doctrine  that  an  agreement  for  the  sale  and  de- 
livery, now  or  hereafter,  of  articles  already  existing,  is 
within  the  statute,  but  not  an  agreement  to  sell  and  do- 
liver  articles  which  have  no  existence,  and  are  to  be 
made  hereafter.2  But  the  modern  English  doctrine  fol- 
lowed in  some  of  the  States,  seems  to  consider  the  ques- 
tion to  be  whether  the  contract  was  one  for  the  sale  of 
goods  or  for  work  and  labor,  and  to  hold  that  if  the  con- 
tract be  such  that  when  carried  out  it  would  result  in 
the  sale  of  a  chattel,  then  the  party  cannot  sue  for  work 
and  labor,  but  that  if  the  result  of  the  contract  is  that 
the  party  has  done  work  and  labor  which  ends  in 
nothing  that  can  become  the  subject  of  a  sale,  then  the 
par  v  cannot  sue  for  goods  sold  and  delivered/  And 
in  Massachusetts,  the  distinction  is  drawn  that  a  con- 


g   275  STATUTE   OF  FRAUDS.  388 

tract  for  the  sale  of  articles  already  existing,  or  such  as 
the  vendor  in  the  ordinary  course  of  his  business 
manufactures  or  procures  for  the  general  market, 
whether  on  hand  at  the  time  or  not,  is  a  contract  for 
the  sale  of  goods,  to  which  the  statute  applies,  but  that 
the  case  is  not  within  the  statute  if  the  goods  are  to  be 
manufactured  especially  for  the  purchaser,  and  upon 
his  special  order,  and  not  for  the  general  market.4 

Auction  sales.  Auction  sales,  as  well  as  execution 
sa]es  and  public  sales  generally,  are  now  settled  to  be 
within  the  policy  of  the  statute  of  frauds,  independent 
of  their  inclusion  by  special  phraseology.5 

Various  contracts.  A  chattel  mortgage  is  sometimes 
deemed  to  come  within  the  denomination  of  contracts 
of  sale,  as  being  a  species  of  conditional  or  defeasible 
sale  ;6  but  not  an  agreement  to  be  partners  in  a  sale  of 
goods ; 7  nor  an  oral  agreement  which  involves  a  loan 
upon  security  and  not  a  sale.8 

Mixed  contracts.  Where  a  contract  includes  a  sale  of 
goods,  and  other  matters  not  within  the  statute,  the 
seventeenth  section  of  the  statute  will  apply  if  the  goods 
included  in  the  contract  be  of  the  prescribed  value, 
though  the  rest  of  the  contract  may  perhaps  be  enforced, 
if  there  can  be  separation  of  the  valid  and  invalid 
portions.9 

1  See  Towers  v.  Osborr.e,  1  Strange,  506;  LangdctPs  Cases  on 
Sales,  1 ;  Clayton  v.  Andrews,  4  Burr.  2101 ;  Langdell's  Cases  on  Sales, 
2  ;  Cii-oves  v.  Buck,  3  Maule  &  S.  178 ;  Lang-dell's  Cases  on  Sales,  9  ; 
Eichelberger  ?>.  McCauley,  5  liar.  <fe  J.  213  ;  Langdoll's  Cases  on  S.iles, 
3').    But  see  Rondeau  v.  Wyatt,  2  Black.  II.  63  ;  Langdell's  Cases  on 

5  UPS,  3  ;  Cooper?'.  Klston,7Term  Rep.  14  ;  Langdell's  Cases  on  .Sales, 

6  ;  Garbutt  v.  Watson,  5  Barn.  &  Aid.  613  j  Lairjdell's  Cases  on  Sales, 
10. 

2  See  Cooke  v.  Millard,  65  N.  Y.  352 ;  22  Am.  Rep.  619  :  Parsons  v. 
Loucks,  48  N.  Y.  17  ;  8  Am.  Rep.  517  ;  Higgins  v.  Murray,  73  X.  Y.  452  ; 
Bennett  v.  Hull,  10  Johns.  364  ;  Langdell's  Cases  on  Sales,  31 ;  Crook- 
fi'i  nk  v.  Burrell,  13  Johns.  53;  9  Am.  Dec.  is~  ;  Langdell's  Cases  on 
S  k  s.  321 ;  Sewall  v.  Fiteh,  8  Cowen,  215  ;  Langdell's  Cases  on  Sales, 
33  ;  F'mt  v.  Corbitt,  6  Daly,  420.    But  it  may  be  assumed  that  the  old 
exemption  from  the  statute  of  contracts  to  deliver  thereafter  a  com- 
mO'Hty  already  i:i  ex;sten<^e,  hag  no  present  footing  in  the  United 
Statos" :  See  {Jason  v.  Cheely,  6  Ga.  554  ;  Hooker  v .  Knab,  26  Wis.  511. 


389  STATUTE   OF  FRAUDS.  §   276 

3  Lee  v.  Griffin,!  Best  &  Smith,  272 ;  Langdell's  Cases  on  Sales, 
20.    And  see  Graf  ton  v.  Armitage.  2  Com.  B.  3o6  ;  Langdell's  Cases  on 
Sales,  11 ;  distinguishing:,  Atkinson  r>.  Bell.  8  Barn.  &  C.  277  ;  Lang- 
dell's  Cases  on  .Sales,  801.    Compare  Clay  v.  Yates,  1  Hurl.  &  N.  7-5 ; 
Langdell's  Cases  on  Sales,  15.    Consult,  also,  Pitkin  r.  Noyes,  48  N.  II. 
294 ;  2  A  m.  Hep.  218.    And  see  Finney  v.  Apgar,  2  Vroom,  266  ;  Prescott 
v.  Locke,  51  N.  H.  94  ;  12  Am.  Rep.  55. 

4  Goddard  v.  Binney,  115  Mass.  430;  15  Am.  Rep.  112.    And  see 
Mixer  r.  llowarth,  21  Pick.  205 ;  32  Am.  Dec.  256  ;  Langdell's  Cases  on 
Sales,  2r> ;  Spencer  v.  Cone,  1  Met.  283  ;  Langdell's  Cases  on  Sales,  23  ; 
Gardner  v.  Joy,  9  Mot.  177;  Langdell's  Cases  on  Sales,  29;  Lamb  v. 
Crafts,  12  Met.  8">3 ;  Waterman  v.  Meigs,  4  Cush.  497  ;  Clark  v.  Nichols, 
107  Muss.  547  ;  May  v.  Ward,  134  Mass.  127.    Similar  doctrine  in  Maine  : 
See  Hight  v.  Ripley,  13  Me.  139;  Edwards  v.  Grand  Trunk  R.  R.  Co. 
48  Me.  379  ;  54  Me.  105  ;  Crockett  v.  Scribner,  64  Me.  447.    And  in  Wis- 
consin: Meinclie  v.  Falk,  55  Wis.  427;  42  Am.  Rep.  722.    Basis  of 
foregoing   matter:    2   Schouler    on   Personal    Property,  \\  4^8-443; 
Langdell's  Cases  on  Sales,  1025,  1039  ;  Cooke  v.  Millard,  65  N.  Y.  352; 
22  Am.  Rep.  619,  62L-623.    And  consult  Bennett's  Benjamin  on  Sales, 
?£  92-109,  notes ;  1  Corbin's  Benjamin  on  Sales,  ?§  92-110,  notes  ;  Camp- 
bell on  Sales,  102, 104  ;  Story  on  Sales,  \\  200-260  c,  notes  ;  Milliard  on 
Sales,  pp.  464-407  ;  Browne  on  Statute  of  Frauds,  ?§  299-308  ;  Wood  on 
Frauds,  \\  295-304  ;  2  Kent  Com.  (13th  ed.)  p.  724,  n.  2 ;  Pnget  Sound 
Iron  Co.  v.  Worthington,  7  Pac.  Rep.  (Wash.  T.)  886;  Pawleslci  v. 
Hargreaves,  47  N.  J.  L.  334  ;  54  Am.  Rep.  162,  with  reporter's  notes, 
164,  reviewing  cases  on  subject. 

5  See  2  Schouler  on  Personal  Property,  §  444 ;  citing,  2  Kent  Com. 
540  ;  Browne  on  Statute  of  Frauds,  §  293  ;  Story  on  Sales,  \  264  ;  Hinde 
v.  Whiten  ouse,  7  East,  558  ;  Langdell's  Cases  on  Sales,  102, 108, 110  (ques- 
tioning, Simon  v.  Motives,  1  Black.  W.  509) ;  Kenworthy  i>.  Schofield, 
2  Barn.  &  C.  945;  Langdell's  Cases  on  Sales,  373;  Morton  v.  Dean,  13 
Met.  3S5 ;  Brent  v.  Green,  6  Leigh,  10 ;  O'Donnell  v.  Leeman,  4'i  Me. 
358.    Like  effect:    Davis  v.  Rowell,  13  Am.  Dec.  398;  Meadows  v. 
Meadows,  15  Am.  Dec.  645. 

6  See  Gleason  v.  Drew,  9  Greenl.  79  ;  Clark  v.  Duffey,  24  Ind.  271  ; 
Browne  on  Statute  of  Frauds,  $  294.    Sale  and  defeasible  sale :  Wood 
on  Frauds,  \\  285,  286. 

7  Bucker  v.  Ries,  34  Mo.  354. 

8  Brown  v.  Allen,  35  Iowa,  306.    Basis  of  paragraph  :  2  Schouler 
on  Personal  Property,  §  445.    Conversation  importing  a  contract  of 
s:;le  which  must  comply  with  statute :  See  Bates  v.  Coster,  3  Thorn  p. 
&  C.  580 ;  Bowers  v.  Anderson,  49  Ga.  143.    Promise  to  pay  for  goods 
of  another,  etc. :  See  Bugbee  v.  Kendricken,  130  Mass.  437  ;  Flanagan 
v.  Hutchinson,47  Mo.  237.    Contract  not  to  be  performed  within  a 
y^iir  :  See  Equitable  Gas  Light  Co.  v.  Baltimore  Coal  Tar  etc.  Co.  63 
M'l.  285  ;  Gregory  v.  Underbill,  6  Lea,  207.    Consult  as  to  patents,  also, 
Blikeney  v.  Goode,  30  Ohio  St.  350  ;  Somerby  v.  Buntin,  118  Mass.  279. 
But  compare  Packet  Co.  v.  Stiles,  5  Wall.  580. 

9  See  Harman  v.  Reeve,  18  Com.  B.  586;  Langdell's  Cases  on 
Sales,  90  ;  Irvine  v.  Stone,  6  Cush.  508  ;  Rand  v.  Mather,  11  Cusli.  1,7; 
59  Am.  Dec.  131 ;  Bennett's  Benjamin  on  Sales,  9  i:>7,  and  cases  cited  ; 
1  Corbin's  Benjamin  on  Sales,  §  137,  n.  4.    Entirety  of  contract  dis- 
cussed :  2  Schouler  on  Personal  Property,  §  44d 

§  276.    Things  attached  to  the  soil.  —  Products  of  the 
earth.    It  is  now  the  settled  rule  of  England  and  Amer- 


$   276  STATUTE   OF  FRAUDS.  390 

ica,  at  least  in  the  absence  of  manifestations  of  a  different 
intent,  that  fructus  industriales,  or  annual  crops  which 
are  the  fruits  of  periodical  industry,  such  as  unsevered 
corn,  potatoes,  etc.,  do  not  come  within  the  provisions 
of  section  four  of  the  statute  of  frauds  relating  to  interests 
in  land,1  but  that  they  are  chattels  which  presumably 
fall  within  the  provisions  of  the  seventeenth  section  of 
the  statute.2  But  the  English  decisions  seem  to  justify 
the  position  that  an  oral  contract  relating  to  fructus 
naturales  or  natural  products  of  the  soil,  such  as  timber, 
fruit  trees,  grass,  etc.,  which  contemplates  the  transfer 
of  the  seller's  property  while  they  are  still  annexed  to 
the  soil,  is  within  the  fourth  section  of  the  statute  of 
frauds  as  an  interest  in  land,3  while  the  oral  sale  of  such 
products  in  the  ground,  but  awaiting  a  severance  before 
property  can  pass  to  the  purchaser,  is  only  a  chattel  sale.4 

Growing  trees.  In  New  York  and  several  other  States, 
it  is,  however,  emphatically  laid  down  that  the  sale  of 
growing  trees,  with  the  right  given  to  the  purchaser  to 
enter  and  remove  them  hereafter,  must  invariably  be 
expressed  in  writing,  as  constituting  the  sale  of  an  in- 
terest in  lands  within  the  statute.5  But  there  are  said 
to  be  numerous  opinions  among  the  later  cases  in  this 
country  which  justify  the  inference  in  regard  to  all  con- 
tracts for  the  sale  of  trees  or  timber,  that  irrespective  of 
the  circumstance  that  the  purchaser  shall  cut  the  trees 
instead  of  the  vendor,  such  contracts  concern  an  interest 
in  lands,  and  must  be  put  in  writing  if  the  parties  meant 
to  grant  a  present  property  to  the  unsevered  trees  ; 6  but 
that  it  is  otherwise  if  the  obvious  design  of  the  parties 
was  to  sell  trees,  the  title  to  which  should  not  pass  to 
the  purchaser  until  the  thing  had  been  severed  so  as  to 
exist  as  a  chattel.7 

Fixtures.  It  has  been  held  in  England  that  an  agree- 
ment for  the  sale  of  fixtures  between  the  landlord  and 


391  STATUTE   OF  FRAUDS.  §   276 

the  outgoing  tenant  is  not  a  sale  of  goods,  either  within 
the  statute  of  frauds  or  the  meaning  of  a  count  for  goods 
sold  and  delivered  ;8  and  it  seems  that  a  contract  which 
purports  not  merely  to  sell,  but  to  annex  the  thing  so 
that  it  shall  be  permanently  incorporated  with  the  soil, 
cannot  be  regarded  as  a  mere  contract  for  the  sale  of 
goods  within  the  seventeenth  section  of  the  statute.9 

1  See  Green  •?>.  Armstrong,  1  Denio,  550  ;  Kingsley  v.  Holbrook,  45 
N.  H.  313 ;  Bryant  v.  Crosby,  40  Me.  22  ;  Boss  v.  Welch,  11  Gray,  235 ; 
Punier  v.  Piercy,  40  Md.  212;  17  Am.  Rep.  591  ;  Moreland  v.  Myall,  14 
Bush,  474  ;  Story  on  Sales,  ?  263  a  ;  Bennett's  Benjamin  and  1  Corbin's 
Benjamin  on  Sales,  \\  120-122  ;  Evans  v.  Roberts,  5  Barn.  &  C.  82!) ; 
Langdell's  Cases  on  Sales,  46  ;  Jones  v.  Flint,  10  Ad.  &  E.  753  ;  Lang- 
dell's  Cases  on  Sales,  66  ;  Dunne  v.  Ferguson,  Hayes,  540  ;  Langdell's 
Cases  on  Sales,  73.    Compare  Mayfield  v.  Wadsley,  3  Barn.  &  C.  300; 
Earl  of  Falmonth  v.  Thomas,  1  Cromp.  &  M.  89.    English  cases  relat- 
ing to  unsevered  crops  in  general :  Warwick  ?;.  Bruce,  2  Maule  &  S. 
205  ;  Langdell's  Cases  on  Sales,  45  ;  Parker  v.  Staniland,  11  East,  36'"! ; 
Langdell's  Cases  on  Sales,  42  ;  Crosby  v.  Wadsworth,  6  East,  603 ; 
Watts  v.  Friend,  10  Barn.  &  C.  44P> ;  Langdell's  Cases  on  Sales,  61 ; 
Sainsbury  v.  Matthews.  4  Mees.  &  W.  343  ;  Langdell's  Cases  on  Sales, 
64.    And  consult  Campbell  on  Sales,  158-102 ;  Langdell's  Cases  on 
Sales,  1034. 

2  S^e  Blackburn  on  Sales,  pp.  19,20.    And  consult  for  basis  of 
foregoing  matter,  2  Schouler  on  Personal  Property,  \\  44S-4CO. 

3  See  citations  in  next  note. 

4  See  Washburn  v.  Burrows,  1  Ex.  1C7 ;  Rodwell  v.  Phillips,  9 
M^es.  &  W.  501 ;  Blackburn  on  Sales,  0, 10  ;  Bennett's  Benjamin  and 
1  Corbin's  Benjamin  on  Sales,  ?g  122-126  ;  Marshall  v.  Green,  Law  R.  1 
C.  P.  D.  35  ;  15  Eng.  Rep.  218.    And  compare  Smith  v.  Lunnan,  9  Born. 
561 ;  Graves  v.  Weld,  5  Barn.  &  Adol.  105  ;  Punier  v.  Piercy,  40  Md. 
212,  223  ;  17  Am.  Rep.  501. 

5  See  Green  v.  Armstrong,  1  Denio,  550  ;  Howe  v.  Batchelder,  49 
N.  H.  204  ;  Huff  v.  McCauley,  53  Pa.  St.  500  ;  Harrell  v.  Miller,  35  Miss. 
700.    A  parol  contract  for  the  sale  of  timber  amounts  merely  to  a 
revocable    license:    Armstrong    v.   Lawson,  73  Ind.  498.    And  see 
Slocum  v.  Seymour,  36  N.  J.  L.  138  ;  13  Am.  Rep.  432. 

6  See  citations  in  next  note. 

7  See  Kingsley  v.  Holbrook,  45  N.  H.  313 ;  86  Am.  Doc.  171,  n.  182, 
fully  discussing  subject ;  Sterling  v..  Baldwin,  42  Vt.  306  ;  White  ?'. 
Foster,  102  Mass.  375,  378  ;  Byassee  v.  Reese,  4  Met.  (KyJ  372  ;  83  Am. 
Dec. 481 ;  Killmore  v.  Hewlett, 48  N.  Y.  569  ;  Edwards?'.  Grand  Trunk 
R.  R.  Co.  54  Me.  105.    Basis  of  foregoing  matter:  2  Schouler  on  Per- 
sonal Property,  ?  451.    And  see  Story  on  Sales,  \  203  a  ;  3  Parsons  on 
Contracts,  31.    Void  oral  sale  of  stumpage,  valid  as  a  license :  Spald- 
Jng  v.  Archibald,  52  Mich.  365  ;  50  Am.  Rep.  253. 

8  Hallen  v.  Runder,  1  Cromp.  M.  &  R.  267.    And  see  Lee  ?>.  Gas- 
kell,  Law  R.  1  Q.  B.  D.  700  ;  18  Eng.  Rep.  131  ;  Blackburn  on  Sales.  i>. 
9 ;  Bennett's  Benjamin  on  Sales,  £§  127, 127  a ;  Campbell  on  Sales,  161. 

9  See  Cotterelt  v.  Apsley,  6  Taunt.  322  ;  Clark  v,  Bulmer,  11  Mees. 
cfe  W.  243  ;  cited,  2  Schouler  011  Personal  Property,  §  453,    Consult, 
also,  Wood  on  Frauds,  §  284. 


§    277  STATUTE   OF   FRAUDS.  392 

\  277.  Incorporeal  personalty.  —  Shares  of  stock.  In 
England,  enforcement  is  allowed  of  oral  contracts  for 
the  sale  of  corporate  shares,1  and  even  of  shares  in  un- 
incorporated joint  stock  companies, ^  which  are  not  re- 
garded as  coming  within  the  designation  of  goods,  wares, 
and  merchandise  in  the  statute  of  frauds,3  or  stamp  acts,4 
nor  as  relating  to  interests  in  land  and  so  requiring 
written  evidence.5  But  in  this  country  the  prevailing 
doctrine  is  that  a  contract  for  the  sale  of  shares  of  stock 
in  a  manufacturing,6  mining,7  or  other  corporation,8 
must,  in  the  absence  of  compliance  with  the  other  requi- 
sites of  the  statute  of  frauds,9  and  independently  of  the 
use  of  sufficiently  comprehensive  words  in  the  statute,10 
be  proved  by  some  note  or  memorandum  in  writing.11 

Negotiable  instruments.  Yet  the  inclination  in  this 
country  appears  to  be  to  exclude  promissory  notes,  as 
to  oral  contracts  for  their  sale,  from  the  operation  of  the 
clause  of  the  statute  of  frauds  relating  to  goods,  wares, 
and  merchandise,12  though  it  is  held  otherwise  as  to 
bank  bills,13  treasury  checks,14  and  bonds.15 

Things  in  action.  In  the  statutes  of  several  of  the 
States,  things  in  action,  as  well  as  goods  and  chattels, 
are  included  in  the  designation  and  application  of  the 
statute;16  and  accounts  and  judgments  have  been 
deemed  covered  by  such  phraseology.17 

Patent  rights.  Even  where  the  liberal  rule  concern- 
ing incorporeal  personalty  prevails,  it  is  held  that  an 
oral  agreement  for  the  sale  of  an  interest  in  an  invention 
before  letters  patent  are  obtained,  is  not  a  contract  for 
the  sale  of  "  goods,  wares,  or  merchandise,"  within  the 
statute,  but  is  enforcible  by  bill  in  equity.18  But  the 
legal  title  to  a  patent  right  is  affected  by  United  States 
statutes  concerning  written  assignments.19 

1  See  citations  in  notes  after  next. 

2  Watson  •?>.  Ppratley,  10  Ex.  222,  235,  238  ;  24  Law  J.  Ex.  53.    And 
see  Powell  v.  Jessop,  18  Com.  B.  336,  354,  355  ;  25  Law  J.  Coin.  P.  199. 


393 


STATUTE   OF  FRAUDS. 


278 


3  Humble  v.  Mitchell.  10  Ad.  &  E.  205  ;  Langdell's  Cases  on  Sales, 
70,  72  ;  Duncuft  v.  Albrecht,  12  Sim.  189  198  ;  Watson  r.  Spratley,  10 
Ex.  222,  233,  238  ;  24  Law  J.  Ex.  53.    And  see  Tempest  v.  Kilner,  3  Com. 
B.  249,  251. 

4  Knight  v.  Barber,  16  Mees.  &  W.  65,  69,  70.    And  see  Bowlby  v. 
Bell,  3  Com.  B.  284. 

5-  Watson  7'.  Spratley,  10  Ex.  222, 235V  238  ;  24  Law  J.  Ex.  53  ;  Powell 
r.  Jessop,  18  Cor-i.  B.  336,  354,  355  ;  25  Law  J.  Com.  P.  199  ;  Bradley  v. 
Holdsworth,  3  Mees.  &  W.  422,  424. 

6  Tisdale  v.  Harris,  20  Pick.  9 ;  Langdell's  Cases  on  Sales,  75. 

7  Mayer  v.  Child,  47  Cal.  142. 

8  Soe  citations  in  second  note  after  next. 

9  Soe  Fay  v.  Wheeler,  44  Vt.  292,  233  ;  Mayer  v.  Child,  47  Cal.  142. 

10  See  South.  Life  Ins.  etc.  Co.  v.  Cole,  4  Fla.  359,  373. 

11  Tisdale  v.  Harris,  20  Pick.  9, 13, 14 ;  Langdell's  Cases  on  Sales,  7", 
73,  7.) ;  Boardman  v.  Cutter.  128  Mass.  27!),  285  ;  North  ?•.  Forest,  15 
COMM.  -100,404;  Pray  v.  MitchUl,  GO  Me.  430,434,4:15;  Colvin  v.  Wil- 
liams, 3  Har.  &  J.  38,  42 ;  5  Am.  Dec.  417  ;  Fine  ?•.  Hornsby,  2  M9.  App. 
61,04;  Mayer  v.  Child,  47  C  il.  142.     Contra,  see  Vawter  ?\  Griffin,  40 
Jnd.  5:13,000,603.    And  compar-  Green  v.  Brooking,  23  Mich.  48,51; 
Galsd  MI  7'.  Lance,  1  McMull.  Eq.  87.  88  ;  37  Am.  Doc.  548.    Question 
not  passed  on  because  contract  executed  in  case  of  an  interest  in  a 
stage  company  claimed  to  be  held  in  a  species  of  partners  hi  pi  ike 
shares  ia  joint  stock  companies:  Huntley  v.  Huntley,  114  U.  S.  394, 
399. 

12  Whittemore  v.  Gibbs,  24  N.  H.  484,  488.    And  see  Abbott  v.  Shop- 
ard,  48  N.  H.  14,  17  ;  Vawter  v.  Griffin,  40  Ind.  593,  600,  602.    Compare 
Hudson  ?'.  Weir,  29  Ala.  294,  298.     Contra,  see  Baldwin  v.  Williams,  3 
Met.  3C5,  367  ;  Langdell's  Cases  on  Sales,  82,  84,  85. 

13  Pee  Gooch  v.  Holmes,  41  Me.  523,  528  ;  Riggs  v.  Magruder,  2 
Crunch  C.  C.  143. 

14  Beers  v.  Crowell,  Dud.  (Ga.)  28,  29,  30. 

15 '  Hagar  v.  King,  38  Barb.  200,  205,  206.  But  compare  TTaseltlne  v. 
Siggers,  1  Ex.  856,  858,  859. 

16  See  Hagar  r.  King,  38  Barb.  200,  205  ;  Artcher  v.  Zen,  5  Hill,  200, 
203,  204  ;  Langdell's  Cases  on  Sales,  3:iO. 

17  See  Walker  v.  Supple,  54  Ga.  178, 179  ;  Armstrong  v.  Cushney,  43 
Barb.  340,  341,  342  ;  Truax  v.  Slater,  86  N.  Y  630,  631.    But  judgments 
have  been  held  not  to  come  under  the  statute  as  an  interest  in  land 
(Winberry  v.  Koonce,  I  Barb.  379,  387)  ;  nor  as  goods,  wares,  and  mer- 
chandise :  See  Abbott  r.  Shepard,  48  N.  II.  14,  17.  'A  contract  for  the 
sale  of  gold  as  a  commodity  is  within  the  statute  :  Peabody  v.  Speyers, 
56  N.  Y.  230. 

18  Somerby  v.  Buntin,  118  Mass.  279  ;  2  Schouler  on  Personal  Prop- 
erty, \  454,  p.  403,  n.  4 ;  referring,  also,  to  Burke  v.  Partridge,  58  N.  II. 
349,  353  ;  Blakeney  v.  Goode,  30    Ohio    St.    350.    But  see  Galpin  r. 
Atwater,  29  Conn.  98. 

10  See  U.  S.  Rev.  Stats.  £4898;  1  Schouler  on  Personal  Property, 
\  523.  Copyright  of  book :  See  Gould  v.  Banks,  24  Am.  Dec.  91. 

\  278.  Prescribed  amount.  —  u Price "  or" value."  Tn 
England,  the  effect  of  Lord  Tenterden's  Act  has  been  to 
substitute  "  value  "  for  "  price  "  in  the  clause  fixing  tho 


\   278  STATUTE   OF  FRAUDS,  394 

lower  limit  of  sales  of  goods,  etc.,  subject  to  the  original 
statute  of  frauds;1  but  "price"  is  the  word  still  used 
in  the  statutes  of  most,  if  not  all  of  the  American  States.2 

Statutory  sum.  The  sum  of  "£10  or  upwards"  has 
always  been  the  English  standard  of  price  or  value,3 
and  in  the  United  States  a  preference  has  always 
been  shown  for  a  similar  standard,  computed  in  federal 
money,  but  the  precise  amount  prescribed  varies  with 
local  legislation  from  thirty  to  fifty  dollars,  and  some- 
times even  reaches  as  high  as  two  hundred  dollars.4 

Proof  that  standard  reached.  The  price  or  value  is  not 
to  be  presumed  to  reach  the  statutory  sum,  but  on  the 
contrary,  the  party  claiming  the  protection  of  the  stat- 
ute must  show  affirmatively  that  his  case  falls  under 
it.5  Yet  a  case  may,  upon  proper  proof,  be  brought 
within  the  provisions  of  the  statute,  at  least  where  the 
word  "value"  is  substituted  for  "price"  therein,  al- 
though the  contract  itself  leaves  it  doubtful  whether  a 
price  less  than  the  statute  standard  might  not  have  been 
agreed  upon.6 

Purchase  of  several  articles.  Where  several  articles 
are  purchased  from  the  same  person  at  the  same  time, 
the  criterion  for  determining  the  application  of  the 
statute  is  found  in  the  total  price  or  value  of  all  the 
articles  embraced  under  a  single  sale  transaction.7 

1  See  Act  9,  George  IV.  ch.  14,  g  7  ;  Harman  v.  Reeve,  IS  Com.  B. 
587  ;  25  Law  J.  Com.  P.  257  ;  Langdell's  Cases  on  Sales,  SO  ;  Campbell 
on  Sales,  162. 

2  See  Browne  on  Statute  of  Frauds  (4th  ed.),  Appx, 

3  See  Act  29,  Charles  II.  §  17  ;  Act  9,  Geo.  IV.  ch.  14,  §  7. 


.       ,  . 

5    See  Crookshank  v.  Burrell,  18  Johns.  58  ;  9  Am.  Dec.  187  ;  Lang- 
dell's  Cases  on  Sales,  32  ;  Browne  on  Statute  of  Frauds,  \  311. 

57  ;  Lang- 
roperty, 
ring  also 


395  STATUTE   OF  FRAUDS.  §   279 

to  Watts  v.  Friend,  10  Barn.  &  C.  446  ;  Langdell's  Cases  on  Sales,  ?  G3  ; 
Browne  on  Statute  of  Frauds,  §  312.  And  consult  1  Corbin's  Benja- 
min on  Sales,  §  137,  n.  4  ;  Bennett's  Benjamin  on  Sales,  \  136,  n.  e  ; 
citing,  Carpenter  v.  Galloway,  73  Ind.  418 ;  Bowman  v.  Conn,  8  Ind. 
58 ;  Brown  v.  Sanborn,  21  Minn.  402. 

7  See  Baldey  v.  Parker,  2  Barn.  &  C.  37  ;  Langdell's  Cases  on  Sales, 
85  ;  Boss'  Leading  Cases,  463 ;  Story  on  Sales,  \  261 ;  2  Schouler  on 
Personal  Property,  §455  ;  referring,  also,  to  Oilman?;.  Hill,  36  N.  H.  311; 
and  comparing  Jenness  v.  Wendell,  51  N.  H.  63 ;  12  Am.  Rep.  48.  Con- 
sult further,!  Chitty  on  Contracts  (11th  Am.  ed.),  532,  533;  Bennett's 
Benjamin  on  Sales,  \\  134,  135  ;  1  Corbin's  Benjamin  on  Salos,  ?  135, 
n.  2,  and  cases  reviewed ;  2  Kent  Com.  (13th  ed.)  p.  724,  n.  3 ;  Wood 
on  Frauds,  §  287. 

§  279.  Earnest  or  part  payment.  —  As  equivalent  acts, 
etc.  The  original  statute  of  frauds,  in  enumerating  the 
acts  which  would  exempt  a  sale  of  goods  from  the 
requirement  of  a  written  note  or  memorandum  of 
the  bargain,  provides  that  the  buyer  may  "give  some- 
thing in  earnest  to  bind  the  bargain,  or  in  part  pay- 
ment "; l  but  of  the  two  modes  thus  presented,  the  former 
has  so  fallen  into  disuse,2  that  earnest  and  part  payment 
are  often  treated  at  the  present  day  as  meaning  the  same 
thing ; 3  while  in  some  of  the  States  of  the  Union  the 
local  enactments  omit  the  word  "earnest"  altogether, 
and  simply  require  that  the  buyer  shall  "at  the  time 
pay  some  part  of  the  purchase  money."4 

Thing  of  value  computable  in  money.  It  seems  to  be 
now  well  settled,  under  our  statute  of  frauds,  that 
whatever  is  given  must  be  parted  with  in  money,  or 
money's  worth,  and  must  be  something  of  value,  how- 
ever slight.5 

Subsequent  to  oral  bargain.  But  it  appears  that  the 
statute  is  satisfied  although  the  giving  of  earnest  or  part 
payment  takes  place  subsequently  to  the  oral  bargain.6 

Acceptance,  etc.  A  mere  offer  or  tender  of  earnest  or 
part  payment  is  insufficient,  .but  the  seller  must  accept 
and  receive  the  same.7 

Deposit  with  third  party.  And  there  is  not  such  a 
giving  of  earnest  or  part  payment  as  the  statute  per- 


g   279  STATUTE   OF  FRAUDS.  396 

mits,  by  the  deposit  of  money  by  the  parties  to  an  oral 
sale  with  a  third  person,  to  be  by  him  paid  to  either  of 
such  parties,  if  the  other  neglects  to  fulfill  his  part  of 
the  bargain.8 

Offset  stipulation.  Where  chattels  are  sold  under  an 
oral  contract  which  comes  within  the  purview  of  the 
statute,  and  it  is  part  of  the  same  contract  that  the  buyer 
shall,  in  consideration  of  the  sale,  offset  a  debt  due  him 
from  the  seller,  and  pay  the  residue,  this  offset  stipulation 
alone  has  not  the  effect  of  a  part  payment  by  the  buyer.9 

1  See  Stat.  29,  Charles  II.  ch.  3,  §  IT.    Concurrence  of  part  pay- 
ment with  acceptance  ami  receipt :  Richardson  v.  Squires,  17  Vt.  640  ; 
Allen  v.  Aguirre,  3  Seld.  543. 

2  See  2  Kent  Com.  496,  n.  &. 

3  See  Howe  v.  Hayward,  108  Mass.  54  ;  11  Am.  Rep.  306  ;  Browne 
on  Statute  of  Frauds,  ?  341 ;  Story  on  Sales,  §  273 ;   Bennett's  Ben- 
jamin and  1  Corbin's  Benjamin    on  Sales,  §  189 ;    1  Bouvier  Law 
Diet,  tit.  Earnest  (14th  ed.),  515.    Distinction  in  civil  law  and  under 
ancient  English  custom,  whereby  "  earnest"  covered  a  gift  or  othc  r 
t')U<-n  that  the  bargain  was  concluded  while  "  part  payment"  was  in 
money  and  on  account  of  price:  See  Dig.  19,  1,  11,^0;  Bennett's 
Benj'imin  ort  Sales,  §  139  ;  citing  illustrative  cases  of  Bach  •»'.  Owen,  2 
Bhvk.  JI.  31');  Goorlall  v.  Skelton,  5  Term  Bep.  400 ;  and  referring  to 
Eissell  r.  Balcom,  39  N.  Y.  '27 \ 

4  See  Organ  r.  Stewart,  60  X.  Y.  413;    Cal.  Civ.  Code,  §  17-71 ; 
Browne  on  Statute  of  Frauds  (-5th  <  <!.),  Appx.  ;  2  Schouler  on  Personal 
Property,  §  476,  whence   paragraph   derived.     And  see  Wood  on 
Trauds,  £  282,  n.  2,  290,  293. 

5  Artcher  v.  Zen,  5  Hill,  200;   Langdell's  Cases  on  Sales,  3?0 ; 
Browne  on  Statute  of  Frauds,  \  341;   Krohn  v.  Buntz,  68  Incl.  277; 
White  v.  Drew,  56  How.  Pr.  53,  57.    Check  or  third  party's  bill  or  note 
may  be  sulllcient  part  payment :  See  Hunter  v.  Wetsell,  84  N.  Y.  54') ; 
38  Am.  Rep.  544  ;  Grimths  ?'.  Owen,  13  Mees.  <fe  W.  58.    But  compare 
Xoakes  v.  Morey,  30  Ind.  103, 110  ;  Krohn  v.  Buntz,  <>3  Ind.  277  ;  Howe 
r.  Hay  ward,  108  Mass.  c4  ;  11  Am.  Rep.  306.    Compare  Sharp  r.  Carroll, 
27  X.  W.  Rep.  (Wis.)  8-2.    Crossing  buyer's  hand  with  coin  under 
ancient  custom,  and  returni?\g  coin  to  pocket,  insufficient  as  earnest : 
See  Goodall  v.  Skelton,  2  Black.  II.  «!S;  Blenkinsop  v.  Clayton,  7 
Taunt.  597  ;  Langdell's  Cases  on  Sales,  117. 

6  See  Walker  r.  Xussey,  16  Mees.  &  W.  302  ;  Langdell's  Cases  on 
Sales,  326;  Thompson  v.  Alger,  12  M"t.  423;  Langdell's  Cases  on 
Sales,  32f»,  n.  1 ;  Story  on  Sales,  §  273, «  ;  Browne  on  Statute  of  Frauds, 
#  343.     Expression  "at   the    time"  in    New  York   and   Wisconsin 
statutes:  See  Bissell  v.  Balcom,  39  X.  Y.  275  ;  Ilawley  v.  Keeler,  53 
X.  Y.  114 ;  Hunter  v.  Wets?ll,  57  X.  Y.  37o  ;  84  X.  Y.  549  ;  38  Am.  Rep. 
544;  Bates  v.'  Chesebro,  32  Wis.  594;  Paine  v.  Fulton,  34  Wis.  83. 
Earnest,  etc.,  does  not  transfer  full  title :  See  Bach  r.  Owen,  5  Term 
Rep.  403  ;  Xesbitt  v.  Burrv,  25  Pa.  St.  208  ;  Groat  r.  Gile,  51  X.  Y.  431  ; 
1  Bouvier  Law  Diet.  tit.  Earnest  (14th  ed.),515  ;  citing,  2  Blackst.  Com. 
447;  2  Kent  Com.  4!)5.    But  see  Hinde  v.  Whitehouse,  7  East,  558; 
Laugdell's  Cases  on  Sales,  102. 


397  STATUTE  OF  FRAUDS.  §  280 

7  See  Hicks  v.  Cleveland,  48  N.  Y.  84 ;  Hawley  v.  Heeler,  53  X.  Y. 
114  ;  Edgerton  v.  Hodge,  41  Vt.  676. 

8  See  Howe  r.  Hayward^  108  Mass.  64  ;  11  Am.  Rep.  306  •  Noakes 
v.  Morey,  30  Ind.  103. 

9  See  Walker  v.  Nussey,  16  Mees.  &  W.  302 ;  Langdell's  Ca«es  on 
Sales,  326  ;  Artcher  ?-.  Zen,  5  Hill,  500  ;  Langdell's  Cases  on  Sales,  330 ; 
Matthiessen  Refining  Co.  v.  McMahon,  38  N.  J.  L.  />J6  ;  Mattice  v. 
Allen,  3  Keyes,  492.     But  compare  Dow  v.  Worthen,  37  Vt.   108; 
Cotterill  v.  Stevens,  10  Wis.  422  ;  Paine  v.  Fulton,  34  Wis.  83.    Basis  of 
foregoing  matter,  further  discussing  topics  treated:  2  Schooler  on 
Personal  Property,  ?§  476-479 ;  Bennett's  Benjamin  and  1  Corbin's 
Benjamin  on  Sales,  \\  189-194,  and  notes  ;  Campbell  on  Sales,  195 ; 
Story  on  Sales,  273-275.    And  see  Wood  on  Frauds,  \  294. 

$280.  Delivery.  —  Statutory  provisions.  In  regard  to 
the  alternative  act  of  part  performance,  consisting  of  the 
buyer's  acceptance  and  actual  receipt  of  a  portion  of  the 
subject-matter  of  the  sale,  in  the  original  statute  of 
frauds,  substantially  followed  in  American  legislation 
in  most  of  the  States,  the  exemption  is  stated  to  be, 
"  except  the  buyer  shall  accept  part  of  the  goods  so  sold, 
and  actually  receive  the  same." 1 

Requisites  of  delivery.  And  though  the  statute  is 
generally  silent  as  to  acts  of  performance  by  the  seller,2 
yet  as  a  basis  for  actual  receipt  and  acceptance  by  the 
buyer,  there  must  be  a  full  delivery  by  the  seller,3  such 
as  divests  him  not  only  of  his  lien,  but  the  buyer  also 
perhaps  of  his  right  of  return  for  divergence  of  the  goods 
from  the  contract  in  kind  or  quantity,  and  constitutes  a 
complete  and  permanent  surrender  of  possession  with 
an  intention  of  vesting  the  right  of  possession  in  the 
vendee.* 

Insufficiency  of  delivery  or  seller's  acts  alone.  But  de- 
li very  alone  will  not  take  any  case  out  of  the  statute,5 
nor  can  the  seller  render  the  contract  enforcible  by 
any  oral  act  of  his  own,6  independently  of  the  buyer's 
performance.7 

1  29  Charles  II.  ch.  3,  ?  17.  See  comments  in  note  to  Shindler  v. 
Houston,  49  Am.  Dec.  326.  But  in  States  whose  codes  make  express 
mention  of  Incorporeal  chattels,  the  phraseology  is,  '•  shall  accept 
and  receive  part  of  such  goods  or  the  evidences,  or  some  of  them,  of 
snch  things  in  action":  Browne  on  Statute  of  Frauds  (4th  ed.^ 
Appx.;  Cal.  Civ.  Code,  ?  1739. 

SALES. —  34. 


§   281  STATUTE   OF  FRAUDS.  398 

2  See  Boardman  v.  Spooner,  13  Allen,  357 ;  Langdell's  Cases  on 
Sales,  610 ;  Prescott  v.  Locke,  51  N.  H.  94 ;  12  Am.  Hep.  55.  Compare 
Bullock  v.  Tschergi,  13  Fed.  Hep.  345 

S  See  note  to  Shindler  v.  Houston,  49  Am.  Dec.  327.  The  trans- 
mission of  a  bill  of  lading  has  been  held  to  amount  to  the  actual  de- 
livery of  the  property  described  in  it,  and  is  a  compliance  with  the 
statute  of  frauds  as  to  the  sale  and  delivery  of  property  :  First  Is  at. 
Bank  v.  McAndrews,  5  Mont.  325  ;  51  Am.  Hep.  51. 

4  See  Marsh  v.  Rouse,  44  X.  Y.  G43  ;  Maxwell  v.  Brown,  39  Me.  98 
Brandt  v.  Focht,  1  Abb.  N.  Y.  App.  185 ;  Phillips  v.  Bistolli,  2  Barn 
&  C.  511  ;  Browne  on  Statute  of  Frauds,  \\  316-333 ;  Story  on  Sales 
$  276.    And  consult  note  on  Delivery  under  Statute  of  Frauds,  t 
Jamison  ?>.  Simon,  8  Pacif.  Rep.  503.    Sufficiency  of  symbolical  de 
livery  :   King  v.  Jarman,  35  Ark.  190  ;  37  Am.  Rep.  11,  n.  16.    Insuffi 
ciency  of  delivery  to  carrier  :  liausman  v.  Nye,  62  Ind.  4S5  ;  30  Am 
Rep.  199. 

5  See  Maxwell  v.  Brown,  39  Me.  98  ;  63  Am.  Dec.  605,  606, 

6  See  citations  in  next  note.    And  consult  note  to  Shindler  v. 
Houston,  49  Am.  Dec.  328. 

7  See  Nichols  v.  Morse,  100  Mass.  523 ;  Marsh  v.  Rouse,  44  N.  Y. 
643  ;  Hawley  v.  Keeler,  53  N.  Y.  114  ;  Maxwell  v.  Brown,  39  Me.  101 ; 
63  Am.  Dec.  605.    Mere  words  insufficient :  See  Shepherd  r.  Pressey, 
32  N.  H.  55;  Bowers  v.  Anderson,  49  Ga.  143.    And  consult  note  to 
Shindler  v.  Houston,  49  Am.  Dec.  334.    Basis  of  most  of  foregoing 
matter,  further  discussing  subject:  2  Schouleron  Personal  Property, 
\\  459, 460  ;  Bennett's  Benjamin  on  Sales,  §  142,  n.  g  ;  1  Corbin's  Ben- 
jamin on  Sales,  \  139,  n.  1.    To  satisfy  the  statute  of  frauds,  there 
must  be  not  only  a  delivery  of  the  goods  by  the  vendor,  but  a  receipt 
and  acceptance  of  them  by  the  vendee  liable  for  the  price,  which 
acceptance  must  be  voluntary  and  unconditional :  Caulkins  v.  Hell- 
man,  47  N,  Y.  452;  7  Am.  Rep.  461;  as  cited,  Jamison  v.  Simon,  68 
Cal.  17. 

§  281,  Acceptance  and  receipt.  —  Concurrence.  The 
preponderance  of  authorities  at  the  present  day  justi- 
fies the  framers  of  the  statute  of  frauds  by  decidedly 
favoring  a  discrimination  between  acceptance  and  actual 
receipt.1  And  there  must  be  a  concurrence  of  accept- 
ance and  actual  receipt  in  order  to  satisfy  the  statute.2 

Order  of  time.  But  though  it  would  usually  occur, 
contrary  to  the  order  of  the  words  in  the  statute,  that 
the  actual  receipt  of  the  goods  would  precede  accept- 
ance, yet  it  is  not  necessary  that  the  acceptance  should 
follow  the  receipt  of  the  goods,  or  be  contemporaneous 
therewith,3  but  acceptance  prior  to  actual  receipt  will 
satisfy  the  statute.4 

Of  part  of  goods.  Acts  of  performance  may  relate  to 
the  whole  as  well  as  a  part  of  the  subject-matter  of  sale ; 5 


STATUTE   OF  FRAUDS.  g   281 

but  the  acceptance  and  receipt  of  a  part  will  satisfy  the 
statute  as  to  the  whole,  where  it  is  shown  to  be  on  ac- 
count of  the  whole,  if  attaching  even  to  the  slightest 
portion  of  the  goods,  as  a  single  lot,  or  a  sample  not 
designed  as  a  mere  specimen  to  induce  a  future  bar- 
gain,6 and  although  the  rest  of  the  goods  are  yet  to  be 
made  to  order,  or  the  entire  contract  covers  various  lots 
or  articles  of  different  kinds  and  qualities.7 

Relation  to  lien  and  title.  There  can  be  no  acceptance 
and  receipt  while  the  seller  still  retains  that  lien,8 
whereby  he  intends  to  prevent  his  possessory  right 
from  passing  to  the  buyer,9  and  on  the  suggestion  that 
"actual  receipt "  is  to  be  tested  by  the  loss  of  the  seller's 
lien,  sales  in  which  the  transfer  of  title  is  conditional 
upon  payment  have  often  and  perhaps  generally  been 
regarded  as  involving  such  a  price-lien  as  must  render 
the  statutory  compliance  impossible;10  but  it  has  been 
held  that  there  may  be  such  acceptance  and  receipt  as 
satisfies  the  statute,  even  though  the  goods  were  sold 
upon  condition  that  the  property  therein  sjbould  not 
pass  until  the  price  was  paid.11 

Buyer's  possession  and  control.  Where  unbroken 
horses  were  gathered  in  corrals  and  partly  selected, 
and  turned  into  the  seller's  pasture  after  they  were 
broken,  it  was  held  that,  there  was  no  acceptance  and 
receipt  of  them  withinVhe  meaning  of  the  statute  of 
frauds,  as  none  of  the  horses  forming  the  subject-matter 
of  the  contract  ever  passed  into  the  absolute  possession 
and  control  of  the  buyer.12 

1  See  Blackburn  on  Sales,  22,  23;  Bennett's  Benjamin  on  Rales, 
?  139,  156,  b  ;  1  Coibin's  Benjamin  on  Sales,  ?g  139,  157  :  1  Bouvier  Law 
Diet.  tit.  Acceptance  (14th  ed.),  47 ;  2  Kent  Com.  (13th  ed.)  724,  n. ; 
also,  note  to  Shindler  i>.  Houston,  49  Am.  Dec.  327  ;  Cooke  ?».  Mil  lard, 
63  N.  Y.  352  ;  22  Am.  Rep.  61!),  630  ;  Taylor  v.  Mueller,  30  Minn.  343  ;  44 
Am.  Rep.  199,  203.  But  the  terms  have  sometimes  been  thought 
equivalent:  See  Castle  v.  Sworder,  6  Hurl.  &  N.  832;  Langdell'a 
Cases  on  Sales, 257  ;  Marvin  v.  Wallis,6  El.  &  B.  7?-6  ;  Langdell's  (  ascs 
on  Sales,  2'!8.  And  not  only  are  the  terms  "acceptance"  and  "actual 
receipt"  often  interchanged  in  legal  discussion,  but  the  statute  ia 


§   281  STATUTE   OF  FRAUDS.  400 

construed  as  though  it  put  as  a  test  the  seller's  act  of  delivery,  instead 
of  the  buyer's  performance :  See  Holmes  v.  Hoskins,  &  Ex.  753. 

2  See  Cusack  v.  Robinson,  1  Best  &  Smith,  299,  306  ;  Langdell's 
Cases  on  Sales,  266  ;  Campbell  on  Sales,  168  ;  relying,  also,  on  Smith  v. 
Hudson,  6  Best  &  Smith,  168 ;  Langdell's  Cases  on  Sales,  275.    And 
consult  Wood  on  Frauds,  \  305  ;  Cooke  v.  Millard,  65  N.  Y.  352  ;  22  Am. 
Rep.  619,  630;  also,  note  to  Shindler  v.  Houston,  49  Am.  Dec.  327; 
quoting,  Hewes  v.  Jordan,  39  Md.  480;  17  Am.  Rep.  578.    Effect  of 
such  concurrence  :  Browne  on  Statute  of  Frauds,  §  339  ;  Danforth  v 
Walker,  40  Vt.  257  ;  Rappleye  v.  Arlee,  1  Thomp.  <fe  C.  126.    And  com- 
pare Taylor  v.  Wakefield,  6  El.  &  B.  765. 

3  See  citations  in  next  note.    And  consult  note  to  Shindler  v, 
Houston,  49  Am.  Dec.  330. 

4  Cusack  v.  Robinson,  1  Best  &  Smith,  299  ;  Langdell's  Cases  on 
Sales,  266  ;  Campbell  on  Sales,  168  ;  Bennett's  Benjamin  on  Sales, 
§  157  ;  1  Corbin's  Benjamin  on  Sales,  ?  158,  n.  10.    And  see  2  Kent  Com. 
(13th  ed.)  p.  724,  n.  4  ;  Wood  on  Frauds,  \  306  ;  2  Schouler  on  Personal 
Property,  §  465  ;  citing,  also,  Cross  v.  O'Donnell,  44  N.  Y.  661 ;  4  Am. 
Rep.  721  ;  Marsh  v.  Hyde,  3  Gray,  331 ;  Langdell's  Cases  on  Sales,  313 ; 
Buckingham  v.  Osborne,  44  Conn.  133.    Both  acts  may  be  subsequent 
to  the  agreement  of  sale,  if  not  unreasonably  later :  See  Browne  on 
Statute  of  Frauds,  §  337  ;  Story  on  Sales,  £  280  a  ;  Bush  v.  Holmes,  53 


both  should  be  performed  before  the  contract  is  sued  upon  :  See  Bill 
v.  Bament,  9  Mees.  <fc  W.  36  ;  I.angdell's  Cases  on  Sales,  Ifil  ;  Tisdale 
v.  Harris,  20  Pick.  9  ;  Langdell's  Cases  on  Sales,  75 ;  Browne  on  Stat- 
ute of  Frauds,  \\  338,  348  ;  Wood  on  Frauds,  §  307. 

5  See  Saunders  v.  Topp,  4  Ex.  390  ;  Langdell's  Cases  on  Sales,  190 ; 
Simmonds  v.  Humble,  13  Com.  B.  N.  S.  258 :  Laugdell's  Cases  on 
Sales,  272. 

6  See  citations  in  next  note. 

7  See  Elliott  v.  Thomas,  3  Mees.  &  W.  170;  Langdoll's  Cases  on 
Sales,  145 ;  Scott  v.  Eastern  etc.  R.  R.  Co.  12  Mees.  &  W.  35 ;  Lang- 
dell's Cases  on  Sales,  161 ;  Hinde  v.  \Vhitehouse,  7  East,  5-53  ;  Lang- 
dell's Cases  on  Sales,  102;  Gault  v.  Brown,  48  N.  H.  183;  Jenness  v. 
Wendell,  51  N.  H.  63;  12  Am.  Rep.  48  ;  Mills  v.  Hunt,  20  Wend.  431 ; 
Langdell's  Cases  on  Sa'cs,  2S5 ;  Bennett's  Benjamin  on  Saks,  \\  1-11, 
167, 168 ;  1  Corbin's  Benjamin  on  Sales,  £  141,  n.  3,  and  ??  li>6,  168.  notes  ; 
also  consult  note  to  8'iindler  v.  Houston,  49  Am.  Dec.  338,  339,  and 
index  to  Langdell's  Cases  on  Sales,  p.  1021.    But  see  Price  v.  Lea,  1 
Barn.  &  C.  156;  LangJell's  Cases  on  Sales,  129.    Giving  of  sample: 
See,  also,  WTood  on  Frauds,  \\  309,  310  ;  Rohde  v.  Thwaites,  6  Barn.  & 
C.  388 ;  Langdell's  Cases  on  Sales,  138 ;  Klinitz  v.  Surry,  5  Esp.  267  ; 
Langdell's  Cases  on  Sales,  345  ;  Gardner  v.  Grant,  2  Com.  B.  N.  S.  340 ; 
Langdell's  Cases  on  Sales,  237 ;  Kibble  v.  Gough,  38  L.  T.  N.  S.  204 ; 
Rickard  v,  Moore,  38  L.  T.  N.  S.  841 ;  Knight  v.  Mann.  Ir3  Mass.  143  ; 
Rernick  v.  Sandf  ord,  120  Mass.  309.    Taking  part  on  account  of  whole  : 
See  Smith??.  Hudson,  6  Best  &  Smith,  431 ;  Langdell's  Cases  on  Sales, 
275;  Bush  v.  Holmes,  53  Me.  417;  Danforth  v.  Walker,  40  Vt.  257; 
Davis  v.  Eastman,  1  Allen,  422  ;  Stone  v.  Browning,  51  N.  Y.  211.    Part 
acceptance  and  receipt  by  one  of  several  joint  purchasers :  Smith  v. 
Milliken,  7  Lans.  336.    Actions  and  obligations  of  parties  after  part 
acceptance  and  receipt:  See  Story  on  Sales,  §  279  ;  Atwood  v.  Lucas, 
53  Me.  508  ;  Richardson  v.  Squires,  37  Vt.  640. 

8  Divesting  of  vendor's  lien  necessary :  See  note  to  Shindler  v, 
Houston,  4^  Am.  Dec.  331. 


401  STATUTE  OF  FRAUDS.  \-  282 

9  See  Baldey  v.  Parker,  2  Barn.  &  C.  37  ;  Langdell's  Cases  on  Sales, 
85;  Holmes  v.  lioskins,  9  Ex.  753;  Langdell's  Cases  ou  Sales,  215: 
Saliord  v.  McDonough,  120  Mass.  2-;0.  Compare  Dodsley  v.  Varley,  12 
Acl  &  E  G:;2  ;  Langdell  Cases  on  Sales.  155;  Wright  v.  Percival,  8  Law 
J.  N.  S.  Q.  B.  258. 

10  See  Mabberly  v.  Sbeppard,  10  Bing.  99;  Langdell's  Cases  on 
Sales.  142  ;  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680 ;  Langdell's 
Cases  on  Sales,  121 ;  Carter  v.  Toussaint.  5  Barn.  &  Aid.  855;  Lang- 
dell's Cases  on  Sales,  126 ;  Castle  v.  Svvorder,  29  Law  J.  Ex.  235 ;  30 
Law  J.  Ex.  310  ;  Langdell's  Cases  on  Sales,  257  ;  Stone  v.  Browning,  51 
N.  Y.  2!  1  ;  Bennett's  Benjamin  on  Sales,  \\  187, 188.    And  consult  note 
to  Shindler  v.  Houston,  49  Am.  Dec.  329. 

11  Pinkham  v.  Mattox,  51  N.  H.  600.    Basis  of  foregoing  matter: 
2  Bchoulcr  on  Personal  Property,  \\  460-465,  and  other  sources  cited 
in  preceding  paragraphs. 

12  Terney  v.  Doten,  11  Pac.  Rep.  (Cal.)  743. 

$  282,  Acceptance.  —  In  general.  Acceptance  of  part 
of  the  goods  has  been  said  to  be  an  assent  by  the  buyer, 
meant  to  be  final,  that  this  part  of  the  goods  is  to  be 
taken  by  him  as  his  property  under  the  contract,  and 
as  so  far  satisfying  the  contract.1 

Precluding  objection,  etc.  And  while  some  decisions 
consider  that  an  acceptance  and  receipt,  to  satisfy  the 
statute,  need  not  go  so  far  as  to  preclude  the  buyer 
from  objecting  to  the  goods,2  the  more  recent  cases 
establish 3  that  there  can  be  no  acceptance  where  there 
has  been  no  opportunity 4  of  rejecting  the  goods.5 

Inspection  and  examination.  Acceptance  being  an  act 
which,  from  its  nature,  requires  more  deliberation  and 
involves  more  consequences  than  receipt,  should  not, 
unless  given  in  advance,  be  inferred  before  the  buyer 
had  reasonable  chance  and  time,  greater  in  the  case  of 
unascertained  goods,  to  inspect  and  examine  the  goods 
and  determine  upon  their  correspondence  with  the 
contract.6 

Receipt  by  carrier  or  custodian.  And  an  agent  with 
authority  from  the  buyer  to  receive  is  not  necessarily 
the  buyer's  authorized  agent  to  perform  the  larger  act 
ol  acceptance ; '  so  that  delivery  to  a  carrier,8  or  to  a 
wharfinger  or  other  similar  custodian  for  the  seller,9 


§    282  STATUTE   OF   FRAUDS.  402 

and  his  actual  receipt  of  the  goods,  though  transferring 
title  and  risks,  constitute  in  the  absence  of  special 
authority,10  no  such  acceptance  as  would  bind  the  pur- 
chaser and  satisfy  the  statute.11 

1  Blackburn  on  Sales,  22,  23.  Consult,  also,  "Wood  on  Frauds,  §  305  ; 
1  Eouvier  Law  Diet.  tit.  Acceptance  (14th  ed.),  47  ;  2  Kent  Com.  (13th 
ed.)  p.  724,  n.  4  ;  Campbell  on  Sales,  16J  ;  citing,  Bowes  v.  Pontifex,  3 
Fost.  &  F.  739.  Distinction  drawn  between  acceptance  satisfying 
statute  and  that  conclusively  showing  fulfillment  of  contract  :  Mor- 
ton v.  Tibbett,  15  Q.  B.  428  ;  Langdell's  Cases  on  Sales,  1C5  ;  Bennett's 
Benjamin  on  Sales,  \\  149,  150,  and  notes  ;  Remick  v.  Samlford,  120 
Mass.  300.  And  see  Kibble  v.  Gough,  38  L.  T.  N.  L.  204  ;  Rickard  v. 
Moore,  38  L.  T.  N.  S.  841.  But  see  contra,  Simpson  v.  Krumdick,  38 
Minn.  352.  A  refusal  to  take  the  goods,  whether  on  false  or  frivolous 
grounds,  or  none  at  all,  precludes  the  idea  of  acceptance  ;  and  the 
question  of  acceptance  is  one  of  the  intention  of  the  buyer  as  signified 
by  his  outward  acts:  Blackburn  on  Salrs,  22,  23.  Question  one  of 
fact  for  jury,  etc.  :  See  Story  on  Sales,  £  278  ;  Hopton  v.  McCarthy,  10 
Law  R.  Ir.  2G8,  and  cases  cited.  And  consult  note  to  Shindler  v. 
Houston,  49  Am.  Dec.  339,  340.  Acceptance  may  precede  receipt,  but 
especially  in  the  case  of  goods  not  yet  specified,  may  be  contempo- 
raneous with  receipt  or  immediately  follow  it  :  See  Cusack  r.  Robin- 
son, 1  Best  &  Smith,  299  ;  Langdell's  Cases  on  Sales,  2r>3;  Nicholson  v. 
'  ' 


,  ,  ,  . 

Bower,  1  El.  &  E.  172  ;  Langdell's  Cases  on  Sales,  2.'3;  Saunders  v. 
Topp,  4  Ex.  300  ;  Langdell's  Cases  on  Sales,  190  ;  Smith  iv  Hudson,  6 
Best  &  Smith,  431  ;  Langdell's  Cases  on  Sales,  275  ;  Maxwell  v.  Brown, 


,  ,  .  , 

39  Me.  98;  63  Am.  Dec.  6C5  ;  Gorham  v.  Fisher,  30  Vt.  5?S;  Oilman  v. 
Hill,  36  N.  H.  311  ;  Knight  v.  Mann,  118  Mass.  143  ;  Stone  v.  Browning, 
51  N.  Y.  211  ;  Knoblauch  r.  Kronschnabel,  18  Minn.  300.  Contra,  com- 
pare Morton  v.  Tibbett,  15  Q.  B.  428  ;  Langdell's  Cases  on  Sales,  195  ; 
stated  at  length,  Wood  on  Frauds,  §  317. 

2  See  Morton  v.  Tibbett,  15  Q.  B.  42S  ;  Langdell's  Cases  on  Sales, 
195  ;  Gurfieid  v.  Paris,  96  U.  S.  657  ;  8  Fed.  Dec.  671. 

3  Consult  Hewes  v.  Jordan,  39  Md.  472  ;  17  Am.  Rep.  578. 

4  See  Wood  on  Frauds,  \  325. 

5  See  Bennett's  Benjamin  on  Sales,  §2  149,  155;  citing.  Castle  v. 
Sworder,  6  Hurl.  &  N.  8;;2  ;  Langdell's  Cases  on  Sales,  257;  Huntv. 
Hecht.  8  Ex.  814  ;  Langdell's  Cases  on  Sales,  203  ;  Coombs  v.  Bristol, 
etc.  R.  R.  Co.  3  Hurl.  &  N.  5U)  ;  Langdell's  Cases  on  Sales,  242  ;  also, 
Smith  v.  Hudson.  6  Best  &  Smith,  4U1  ;  Langdell's  Cases  on  Sales,  275. 
Contra,  Cusack  r.  Robinson,  1  Best  <fc  Smith,  299  ;  Langdell's  Cases  on 
Sales,  266;  Currie  V.Anderson,  2  El.  &  E.  592;  Langdell's  Cases  on 
Sales,  252.    And  see  Parker  v.  Wallis,  5  El.  &  B.  21  ;  Langdell's  Cases 
on  Sales,  218.     Consult  discussion  of  subject  in  Cooke  v.  3Iillard,65 
N.  Y.  352;  22  Am.  Rep.  619,  6:50-634  ;  note  to  Shindler  v.  Houston,  49 
Am.  Dec.  331-334. 

6  See  Hewes  v.  Jordan,  39  Md.  477  ;  17  Am.  Rep.  5^7;  Smith  v.  Hud- 
son, 6  Best  &  Smith.  4'!1  ;  Langdell's  Cases  on  Sales,  275;  Bog  Lead 
Mining  Co.  v.  Montague,  10  Com.  B.  N.  S.  4S1  ;  quoted  in  Cooke  v. 
Millard,  65  N.  Y.  3^2  ;  22  Am.  Rep.  619,  631.    And  consult  2  Kent  Com. 
(13th  ed.)  p.  724,  n.  4. 

7  Acceptance  by  agents  :  See  Wood  on  Frauds,  \  332,  and  note  to 
Shindler  v.  Houston,  49  Am.  Dec.  339. 

8  Spe  citations  in  note  at  end  of  paragraph.    And  consult  Ather- 
tou  v.  Newhall,  123  Mass.  141  ;  25  Am.  Rep.  47. 


403  STATUTE   OF  FRAUDS.  §   283 

9  See  Hart  v.  Bush,  El.  B.  <fe  E.  494  ;  Langdell's  Cases  on  Sales, 
239;  Huntv.  Hecht,  8  Ex.  814  :  Langdell's  Cases  on  Sales,  208;  Quin- 
tard  v.  Bacon,  99  Mass.  185. 

10  See  Snow  v.  Warner,  10  Met.  132 ;  43  Am.  Dec.  417  ;  Spencer  v. 
Hale.  30  Vt.  31 1 ;  73  Am.  Dec.  309,  310.    But  compare  Caulkins  v.  Hell- 
man.  14  Hun,  330. 

11  See  Coombs  r.  Bristol,  etc.  B.  B.  Co.  3  Hurl.  &  N.  510;  Lang- 
dell's  Cases  on  Sales,  242 ;  Smith  v-  Hudson,  6  Best  &  Smith,  431 ; 
Langdell's  Cases  on  Sales,  275;  Bennett's  Benjamin  on  Sales,  §  160; 
Norman  v.  Phillips,  14  Mees.  &  W.  277 ;  Langdell's  Cases  on  Sales, 
171 ;  Hopton  v.  McCarthy,  10  Law  B.  Ir.  266  ;  Bodgers  v.  Phillips,  40 
N.  Y   519;  Langdell's  Cases  on  Sales,  316;  Story  on  Sales,  \  276; 
Maxwell  ?;.  Brown,  39  Me.  98;  63  Am.  Dec.  605  ;  Johnson  v.  Cuttle,  105 
Mass.  447;  7  Am.  Bep.  545;  Jones  v.  Mechanics'  Bank,  29  Md.  237. 
And  consult  Wood  on  Frauds,  \  333.    Base  of  foregoing  matter:  2 
Schouler  on  Personal  Property,  \\  466-468,  and  other  works  as  cited 
in  notes.    It  is  said  that  a  common  carrier,  whether  selected  by  the 
seller  or  by  the  buyer,  to  whom  the  goods  are  intrusted  without 
express  instructions  to  do  anything  but  to  carry  and  deliver  them  to 
the  buyer,  is  no  more  than  an  agent  to  carry  and  deliver  the  goods, 
and  has  no  implied  authority  to  do  the  acts  required  to  constitute  an 
acceptance  and  receipt  on  the  part  of  the  buyer,  and  to  take  the  case 
out  of  the  statute  of  frauds :  Johnson  v.  Cuttle,  105  Mass.  449  ;  7  Am. 
Bep.  545  ;  as  quoted,  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325  •  51 
Am.  Bep  51. 

§  283.  What  constitutes  acceptance.  —  Direct  and  con- 
structive acceptance.  A  buyer  accepts  goods  in  the 
fullest  sense,  where  upon  inspection  he  declares  in  un- 
mistakable terms  his  satisfaction  with  the  goods,  and 
his  intention  to  retain  them.1  But  though  acceptance  to 
satisfy  the  statute  should  be  distinct  and  unequivocal, 
yet  it  is  well  settled  that  the  buyer's  own  acts  and  con- 
duct may  be  construed  into  a  binding  acceptance.2 

Exercise  of  ownership.  Thus  very  strong  proof  of  the 
intention  to  accept  is  furnished  by  some  decisive  act  of 
ownership  on  the  buyer's  part,3  as  where  he  sells  the 
goods  to  another  person,  pledges,  lends,  gives,  or  con- 
sumes the  articles,  takes  exclusive  possession  of  them  as 
his  own,4  or  otherwise  clearly  assumes  dominion  over 
them,5  or  even,  though  less  positively  of  itself,  where  he 
unreasonably  delays  returning  the  goods,6  or  giving 
notice  of  their  rejection.7 

Keeping  bills  of  lading.  Keeping  unreasonably  long 
the  indicia  of  title,  such  as  bills  of  lading,  may  amount 


§   283  STATUTE   OF  FRAUDS.  404 

to  a  statutory  acceptance  of  the  goods  which  they  repre- 
sent, especially  if  the  buyer  in  other  respects  acts  as 
owner  of  the  goods.8 

Marking  goods.  But  marking  the  goods  with  the 
purchaser's  name  or  initials  is  not  conclusive  of  accept- 
ance in  itself,  and  whether  it  should  constitute  accept- 
ance or  not  seems  to  depend  upon  the  surrounding 
circumstances,  and  especially  upon  the  buyer's  partici- 
pation in  such  act.9 

Equivocal  acts,  etc.  And  in  general  equivocal  acts  on 
the  buyer's  part  are  not  readily  construed  into  a  statute 
of  acceptance,  unless  aided  by  the  lapse  of  time  or  other 
favoring  circumstances.10 

Intention  to  be  manifested.  But  some  act  or  conduct 
on  the  part  of  the  vendee  or  his  authorized  agent,  mani- 
festing an  intention  to  accept  the  goods  as  a  perform- 
ance of  the  contract  and  to  appropriate  them,  is  required 
to  supply  the  place  of  a  written  contract.11 

1  See  Simmonds  t».  Humble,  13  Com.  B.  X.  ,S.  25S ;  Langdell's 
Cases  on  Sales,  272  ;  Cusack  v.  Robinson,  1  Best  &  Smith,  299 ;  Lang- 
dell's  Cases  on  Sales,  2GG  ;  Saunders  v.  Topp,  4  Ex.  390 ;  Langdell's 
Cases  on  Sales,  190.    And  consult  Caulkins  t\  Helman,  47  N.  Y.  452  ;  7 
Am.  Rep.  401 ;  as  cited,  Jamison  v.  Simon,  68  Cal.  17  ;  8  Pacif.  Rep.  502. 

2  2  Schouler  on  Personal  Property,  ?  469,  whence  preceding  para- 
graph also  mainly  derived.    And  see  Wood  on  Frauds,  \\  314,  315. 
Acceptance  must  be  voluntary  and  unconditional:  Caulkins  v.  Hel- 
man, 47  N.  Y.  452  ;  7  Am.  Rep.  461 ;  as  cited,  Jamison  v.  Simon,  68  Cal. 
17  ;  8  Pacif.  Rep.  502. 

3  See  citations  in  succeeding  notes.    Dealing  with  the  property  as 
owner,  HS  by  a  sale,  pledge,  or  otherwise,  or  detention  of  the  prop- 
erty, or  its  control  beyond  a  reasonable  time  for  inspection  and  rejec- 
tion, is  evidence  of  an  acceptance  :  Taylor  v.  Mueller,  38  Minn.  343  ; 
44  Am.  Rep.  199,  202. 

4  Using  goods  as  owner  :  Wood  on  Frauds,  ?  316. 

5  See  Chaplin  r.  Rogers,  1  East,  192 ;  Langdell's  Cases  on  Sales,  97  ; 
Beaumont  r.  Brengeri,  5  Com.  B.  301 ;  Langdell's  Cases  on  Sales,  185 ; 
Morton  i».  Tibbett,  15  Q.  B.  428  ;  Langdell's  Cases  on  Sales,  195;  Pink- 
Ivvn  v.  Mattox,  53  N.  H.  604  ;  Marshall  v.  Green,  Law  R.  1  C.  P.  D.  35  ; 
15  Eng.  Rep.  218. 

6  Waiver  of  right  of  repudiation  :  See  Spencer  v.  Hale,  30  Vt.  314  ; 
73  Am.  Dec.  309,  311. 

7  See  Coleman  ?'.  Gibson,  1  Moody  &  R.  168;  Langdell's  Cases  on 
Sales,  141;  Farina  r.  Home,  16  Mees.  &  W.  119  ;   Langdell's   Cases 
on  Sales,  180 ;  Meredith  v.  Meigh,  2  El.  <fe  B.  364  ;  Langdell's  Cases  on 


405  STATUTE   OP  FRAUDS.  \  284 

Sales,  203 ;  Hunter  v.  Leavitt,  36  Ind.  141 ;  Treadwell  v.  Reynolds,  39 
Conn.  31  ;  Thompson  v.  Menck,  4  Abb.  N.  Y.  App.  400;  Rappleye  v. 
Adee,  1  Thomp.  &  C.  126.  Basis  of  paragraph  :  2  Schouler  on  Per- 
sonal Property,  \  409,  with  various  supplementary  cases.  And  con- 
sult Bennett's  Benjamin  on  Sales,  §<}  144,  14fi ;  Campbell  on  Sales, 
171-180,  classifying  outward  acts  of  acceptance  ;  Taylor  v.  Mueller,  30 
Minn.  343  ;  44  Am.  Rep.  199,  202  ;  stated  at  length  in  Wood  on  Frauds, 
2  318. 

8  Currie  v.  Anderson,  2  El.  <fe  E.  592 ;  Langdell's  Cases  on  Sales, 
252 ;  Meredith  v.  Meigh,  2  El.  &  B.  3G4  ;  Langdell's  Cases  on  Sales,  203. 
See  Wood  on  Frauds,  §  315.    But  compare  Quintard  v.  Bacon,  99  Mass. 

9  See  Bennett's  Benjamin  on  Sales,  \  166 ;  citing,  Anderson  v. 
Scott,  1  Camp.  235,  n  ;  Langdell's  Cases  on  Sales,  101 ;  disapproved  in 
Saunders  ?».  Topp,  4  Ex.  390  ;  Langdell's  Cases  on  Sales,  li.O ;  Bappleye 
V.  Adee,  1  Thornp.  <fe  C.  126.    And  consult  Wood  on  Frauds,  \  319. 

10  Shindler  v.  Houston,  1  Comst.  261 ;  Langdell's  Cases  on  Sales, 
290  ;  49  Am.  Dec.  316,  317,  and  cases  cited.    Basis  of  foregoing  matter, 
further  discussing  insufficient  proof  of  acceptance :  2  fechouler  on 
Personal  Property,  §  469  ;  citing,  Hunt  v.  Hecht,8  Ex.  814  ;  Langdell's 
Cases  on  Sales,  2o8  ;  Hewes  v.  Jordan,  39  Md.  472  ;  17  Am.  Rep.  578  ; 
Hopton  v.  McCarthy,  10  Law  R.  Ir.  206 ;  Maberley  v.  Sheppard,  10 
Bing.  99 ;  Langdell's  Cases  on  Sales,  142 ;  Tempest  v.  Fitzgerald,  3 
Barn.  &  Aid.  680 ;  Langdell's  Cases  on  Sales,  121 ;  Holmes  v .  Hoskins, 
9  Ex.  753  ;  Langdell's  Cases  on  Sales,  215  ;  Curtis  v.  Pugh.  10  Q.  B.  Ill ; 
Langdell's  Cases  on  Sales,  183  ;  Smith  v .  Hudson,  6  Best  &  Smith,  431 ; 
Langdell's  Cases  on  Sales,  275 ;  Howe  v.  Palmer,  3  Barn.  &  Aid.  557  ; 
Langdell's  Cases  on  Sales,  115;  Hanson  v.  Armitage,  5  Barn.  &  Aid. 
557;  Langdell's  Cases  on  Sales,  125 ;  Nicholson  v.  Bower,  1  El.  &.  E. 
172;  Langdell's  Cases  on  Sales,  248;  Saunders  v.  Topp,  4  Ex.  390; 
Langdell's  Cases  on  Sales,  1'JQ.   Acts  which  are  not  evidence  of  accept- 
ance classified:    Campbell  on  Sales,  169-171.    Persistent  refusal  to 
accept:  Jamison  v.  Simon,  68  Cal.  17;  8  Pacif.  Rep.  502.    And  see 
Taylor  v.  Mueller,  30  Minn.  343  ;  44  Am.  Rep.  199. 

11  Caulkins  v.  Helman,  47  N.  Y.  452;  7  Am.  Rep.  461;  as  cited, 
Jamison  v.  Simon,  63  Cal.  17  ;  8  Pacif.  Rep.  502. 

§  284.  Actual  receipt.  —  In  general.  The  receipt  of 
the  goods  is  the  taking  possession  of  them  by  the 
buyer,  which  occurs  when  the  seller  gives  to  the  ac- 
cepting buyer  the  actual  control  of  the  goods,  and  is 
often  evidence  of  acceptance,  but  is  not  the  same  thing, 
since  it  may  be  and  often  is  for  the  express  purpose  of 
determining  whether  to  accept  or  not.1 

Requisites.  Actual  removal  of  the  goods,  in  part  or 
wholly,  from  the  custody  of  the  buyer  to  that  of  the 
seller,  is  a  common  though  not  an  invariable  accom- 
paniment of  "  actual  receipt "  by  the  buyer ; 2  but  what- 
ever be  the  buyer's  method  of  receiving  possession,  the 


g   384  STATUTE   OF  FRAUDS.  406 

seller  must  finally  part  with  his  control  of  the  goods, 
with  the  intention  of  vesting  the  right  of  possession  in 
the  buyer.3 

Goods  in  buyer's  custody.  Where  the  goods  are  al- 
ready in  the  buyer's  custody  as  bailee  or  agent,  his 
actual  receipt  as  seller  occurs  when  the  character  of  the 
possession  changes,4  and  the  buyer,  with  the  seller's 
consent,  ceases  to  hold  in  such  subordinate  capacity, 
and  begins  to  hold  as  owner.5 

Goods  in  third  person's  custody.  And  where  the  goods 
are  in  a  third  person's  custody,  so  that  three  distinct 
persons  are  concerned  in  effecting  a  transfer  of  posses- 
sion, there  need  also  be  no  removal  of  the  goods  from 
the  custodian's  control;6  but  there  is  an  actual  receipt 
by  the  buyer  which  satisfies  the  statute,  whenever 
seller,  buyer,  and  custodian  all  agree7  that  the  custodian 
shall  attorn  so  as  to  cease  to  hold  for  the  seller,  and 
thereafter  continue  to  hold  for  the  buyer.8 

Goods  in  seller's  custody.  In  the  usual  case  where  the 
goods  are  in  the  seller's  custody,  compliance  with  the 
statute  is  of  course  conclusively  shown  by  taking  posses- 
sion, with  the  seller's  acquiescence,  of  the  whole  or  part 
of  the  subject-matter  of  sale,  and  carrying  it  away,  as  this 
is  evidence  not  only  of  actual  receipt,  but  of  the  exercise 
of  an  important  act  of  ownership.9  But  it  often  becomes 
extremely  difficulty  to  say  at  what  precise  moment  the 
buyer  may  be  said  to  receive  the  goods  at  the  seller's 
hands,  in  cases  where  the  intention  that  a  change  of 
possession  shall  take  place  is  not  evinced  by  any  such 
decisive  act  as  actual  removal  of  the  goods  and  taking 
them  into  the  buyer's  corporeal  and  separate  custody  ; 10 
yet  constructive  receipt  may  be  shown11  where  the 
seller  holds  the  goods  at  the  time  of  the  bargain,  and 
then  changes  the  character  of  his  possession,12  as  clearly 
and  distinctly  shown,  so  as  to  lose  his  original  rights  as 


407  STATUTE   OF  FRAUDS.  g   284 

seller,  and  become  the  buyer's  bailee,  and  continue  to 
hold  in  that  character.13 

1  See  Blackburn  on  Sales,  22-24.    And  consult  IBouvier  Law  Diet, 
tit.  Acceptance  (14th  ed.),  47.    "  Even  the  receipt  of  the  goods,  with- 
out  an  acceptance,  is  not  sufficient : :'  Caulkins  v.  Helman,  47  N.  Y 
452  ;  7  Am.  Rep.  461 ;  as  quoted,  Jamison  v.  Simson,  68  Cal.  17  ;  8  Pac. 
Hep.  502     Much  of  the  discussion  in  the1  courts,  however,  in  cases  of 
doubtful  intent,  turns  upon  "acceptance  '  or  "delivery  and  accept- 
ance/ as  though  the  statute  has  used  the  word  "delivery  "  instead 
of  ''actual  receipt"  ,  and  a  full  acceptance  may  usually  be  expected 
to  carry  with  it  the  taking  of  possession  :  2  Schouler  on  Personal 
Property,  §  471. 

2  2   Schouler  on  Personal   Property,  g  471,  whence  paragraph 
derived     And  see  Langdell's  Cases  on  Sales,  1022.    Receipt  of  indicia  • 
of  property,  such  as  bills  of  lading:  See  Chaplin  v.  Rogers,  1  East, 
192  ;  Langdell's  Cases  on  Sales,  97 ,  Brandt  v.  Focht  1  Abb.  N.  Y  App. 
185. 

3  See  Maberley  v.  Sheppard,  10  Bing.  99 ;  Langdell's  Cases  on 
Sales,  142;  Tempest  v.  Fitzgerald,  3  Barn.  &  Aid.  680;  Langdell's 
Cases  on  Sales,  121 ;  Phillips  v.  Bistolli,  2  Barn.  &  C.  511 ;  Langdell's 
Cases  on  Sales,  134.    Parting  with  lien  :  See  Wood  on  Frauds,  \\  335, 
336. 

4  See  citations  In  next  note.    And  consult  note  to  Shindler  v. 
Houston,  49  Am.  Dec.  338. 

5  See  Edan  v.  Dudfield,  1  Q.  B.  302  ;  Langdell's  Cases  on  Sales,  157 ; 
Lilly  white  v.  Devereux,  15  Mees.  &  W.  285  ;  Langdell's  Cases  on  Sales. 
175 ;  Taylor  v.  Wakefield,  6  El  <fe  B.  765  ;  Langdell's  Cases  on  Sales, 
231.     And    consult   Wood  on   Frauds,  2  337 ;   Langdell's   Cases  on 
Sales,  1023. 

6  See  Langdell's  Cases  on  Sales,  1023 ;  Wood  on  Frauds,  ?  340. 

7  See  note  to  Shindler  v.  Houston,  49  Am.  Dec.  338. 

8  See  Blackburn  on  Sales,  28,  29;  Bennett's  Benjamin  on  Sales, 
179  ;  Campbell  on  Sales.  186,  187     The  buj'er's  receipt  of  indicia  of 
title  from  the  vendor   t-uch  as  a  delivery  order  upon  the  seller's 
warehouseman  or  other  bailee,  is  not  of  itself  a  sufficient  compliance 
with  the  statute,  but  the  English  ^ases  require  an  attornment  to  the 
buyer  from  the  custodian   by  nis  assent  to  hold  the  goods  011  the 
buyer's  account,  while  in  some  parts  of  this  country  it  seems  to  be 
thought  enough  for  the  buyer  to  give  the  custodian  notice  that  he 
has  received  the  indicia  Gt  title  from  the  seller:  See  Searle  v.  Keeves, 
2  Esp.  598  ;  Langdell's  Cases  on  Sales,  95  ;  Sirnmonds  v.  Humble.  13 
Com.  B.  N  S.  258  ;  Langdell's  Cases  on  Sales,  272  ;  Bentall  v  Burn  3 
Barn.  &  C   424;  Langdell's  Cases  on  Sales,  132;  Farina  v.  Home,  16 
Mees.  &  W.  119 ;  Langdell's  Cases  on  Sales,  180 ;  Marsh  v.  Rouse,  44 
N.  Y.  643 ;  Bassett  v.  Camp,  54  Vt.  232  ;  Story  on  Sales,  ?  278  6.    And 
compare  1  Corbin's  Benjamin  on  Sales,  #  174,  n.  21  ;  Wood  on  Frauds, 
Jj  338, 339;  Bqardman  v-  Spooner,  13  Allen,  353  ;  Langdell's  Cases  on 
Sales,  610.    Liability  of  custodian  wrongfully  refusing  to  attorn:  See 
Bontall  v.  Burn,  3  Barn.  <fe  C.  423 ;  Langdell's  Cases  on  Sales,  132. 
Goods  on  third  party's  premises,  etc. :  See  Langdell's  Cases  on  Sales, 
1023 ;  Tansley  v.  Turner,  2  Bing.  N.  C.  151 ;  Cooper  v.  Bill,  3  Hurl.  & 
C.  722;  Wood  on  Frauds,  §  340.    And  compare  Shindler  v.  Houston   1 
Comst.  261 ;  49  Am.  Dec.  316  ;  Langdell's  Cases  on  Sales,  290  ;  Young 
v  Blaisdell,  60  Me.  272. 

9  See  Chaplin  v.  Rogers,  1  East,  192  ;  Langdell's  Cases  on  Sales,  95  ; 
Vincent  v.  Germond,  11  Johns.  283 ;  Langdell's  Cases  on  Sales,  284. 


g   285  STATUTE  OF  FRAUDS.  408 

10  2  Schouler  on  Personal  Property,  §  474,  whence  preceding  para- 
graph also  derived. 

11  See  Wood  on  Frauds,  §  341 ;  note  to  Shindler  v.  Houston,  49  Am. 
Dec.  336. 

12  See  Langdell's  Cases  on  Sales,  1023. 

13  See  Elmore  v.  Stone,  1  Taunt.  4-58;  Langdell's  Cases  on  Sales, 
111 ;  Marvin  v.  Wallis,  6  El.  &  B.  72G ;  Langdell's  Cases  on  Sales,  228 ; 
Beaumont  v.  Brengeri,  5  Com.  B.  301 ;  Langdell's  Cases  on  Sales,  185 ; 
Castle  v.  Sworder,  29  Law  J.  Ex.  235 ;  30  Law  J.  Ex.  310;  and  6  Hurl. 
&  N.  832  ;  Langdell's  Cases  on  Sales.  257;  Rappleyei>.  Aclee,  1  Thomp. 
&  C.  126  ;  Janvrin  v.  Maxwell,  23  Wis.  51.    Consult,  also,  Blackburn 
on  Sales  28,  29;  Story  on  Sales,  §278  ;  Barrett  v.  Goddard,  3  Mason, 
107  ;  Dodsley  v.  Varley,  12  Ad.  <fe  E.  632 ;  Langdell's  Cases  on  Sales, 
155;  Townley  v.  Crump,  4  Ad.  <fe  E.  58;  Safford  v.  MoDonough,  120 
Mass.  2!X).    Basis  of  foregoing  matter  :  2  Schouler  on  Personal  Prop- 
erty, \\  471-474,  and  other  works  and  essays  cited  in  notes.    And  con- 
sult Bennett's  Benjamin  and  1  Corbin's  Benjamin  on  Sales,  \\  172-188 ; 
Campb.  on  Sales,  180-195,  analysing  subject  and  discussing  authorities 

§  285.  Intervention  of  carriers,  etc.  —  Receipt  by  such 
agents.  A  common  carrier  is  not,  ordinarily,  an  agent 
empowered  to  accept,  but  he  is  a  suitable  agent  to  re- 
ceive on  the  buyer's  behalf,1  and  to  this  extent  his  actual 
receipt,  and  also  that  of  a  warehouseman  or  other 
middleman,2  will  satisfy  the  statute  ; 3  and  since  accept- 
ance might  have  preceded  the  seller's  act  of  delivery,4 
an  oral  compliance  with  the  statute  is  sometimes  irrevo- 
cably fixed  as  soon  as  the  carrier  has  received  a  part  of 
the  goods  at  the  seller's  hands.5 

Seller  keeping  control.  But  delivery  upon  the  seller's 
vessel,  or  to  any  carrier  who  really  represents  the  seller, 
possibly  for  the  purpose  of  securing  his  rights  during 
the  transit  of  the  subject-matter,  and  pending  payment,6 
is  so  inconsistent  with  the  idea  of  putting  the  buyer 
into  immediate  possession,  that  the  latter  cannot  be  said 
to  have  received  the  goods  either  personally  or  through 
his  representative.7 

1  Compare  Johnson  v.  Cuttle,  105  Mass.  449  ;  7  Am.  Rep.  345  •  as 
quoted,  First  Nat.  Bank  v.  McAndrews,  5  Mont.  325 ;  51  Am.  Rep.  51. 

2  See  Hunter  v.  Wright,  12  Allen,  548. 

3  See  Cusack  v.  Robinson,  1  Best  &  Smith,  299;  Langdell's  Cases 
on  Sales,  266;  Smith?'.  Hudson,  4  Best  &  Smith,  4:il  ;  Langdell's  Cases 
on  Sales,  275.    And  compare  Bullock  v.  Tschergi,  13  Fed.  Rep.  345. 
Consult  further,  Bennett's  Benjamin  and  1  Corbin's  Benjamin  on 
Sales,  §  181. 


STATUTE  OF  FRAUDS.  g   286 

4  Delivery  to  carrier  :  Wood  on  Frauds,  §  342. 

5  Cross  v.  O'Donnell,  44  N.  Y.  CGI ;  4  Am.  Hep.  721. 

6  See  Langdell's  Cases  on  Sales,  1024. 

7  2  Schouler  on  Personal  Property,  \  475,  whence  preceding  para- 
graph also  derived.    So  if  one  soils  goods  to  be  delivered  by  himself 
at  a  specified  place,  there  is  no  change  of  possession  nor  actual  receipt 
by  the  buyer  until  the  goods  arrive  at  such  place:    S^e  Astey  v. 
Emery,  4  Maule  &  S.  232;  Langdell's  Cases  on  Sales,  114  ;  Smiths. 
Hudson,  6  Best  &  Smith,  -i;;i  ;  Langdell's  Cases  on  Sales,  275.    And  in 
general  it  has  been  contended  that  where  goods,  the  subject  of  an 
oral  contract  of  sale,  are  placed  in  transit  on  their  wiiy  to  the  pur- 
chaser, there  is  r:o  actual  receipt  within  the  statute  until  the  transitus 
is  at  an  end :   Campbell  on  Sales,  184-18G,  reviewing  authorities  and 
criticising  Bennett's  Benjamin  on  Sales  (2cl  Eng.  ed.),  p.  1-5.    But 
compare  Langdell's  Cases  on  Sales,  1024. 

§  236.  Memorandum  in  general.  —  Provision  of  statute. 
The  important  exception  concerning  written  compliance 
with  the  statute  of  frauds  in  relation  to  sales  of  personal 
property,  reads  in  the  original  enactment  as  follows : 
"That  some  iiute  or  memorandum  in  writing  of  the 
said  bargain  be  made,  and  signed  by  the  parties  to  be 
charged  by  such  contract,  or  their  agents  thereunto 
duly  authorized." l  This  provision  necessitates  an  act, 
not  by  the  concurrence  of  both  parties,  nor  by  either 
buyer  or  seller  in  particular,  but  simply  by  the  party 
against  whom  an  oral  enforcement  of  the  contract  is 
sought.2 

Distinguished  from  oral  and  written  contract.  And  in 
the  oral  contract  itself,  and  that  written  memorandum 
thereof  which  takes  the  case  out  of  the  statute  as  to  the 
party  making  and  signing  it,  we  have  two  distinct  things 
which  should  not  be  confounded  with  one  another,3  nor 
with  a  complete  written  contract  which,  where  it  exists, 
is  of  itself  a  sufficient  safeguard  against  fraud  and  per- 
jury, without  the  aid  of  any  memorandum.4 

Method  of  proof.  Though  the  method  of  interpreting 
a  note  or  memorandum,  which  serves  fur  written  com- 
pliance with  the  statute  of  frauds,  follows  the  leading 
rules  as  to  evidence  in  writing,  and  treats  the  statute 
of  frauds  as  not  seeking  to  vary  such  rules,  but  as 
NEWMAKK  SAI.KS.—  35. 


§   287 


STATUTE   OF   FRAUDS.  410 


meaning  to  leave  the  legal  effect  of  the  writing  as  at 
common  law,5  yet  there  is  a  marked  difference  between 
proving  a  contract  of  sale  and  proving  compliance  with 
the  statute  of  frauds;6  for  in  the  latter  case  various 
questions  must  arise  as  to  the  sufficiency  of  memo- 
randa, their  mutual  connection,  and  their  bearing  upon 
the  original  contract  of  sale.7 

1  See  29  Charles  II.  ch.  3,  \  17.    But  in  some  of  the  States  of  the 
Union,  the  requirement  runs  that  "a  note  or  memorandum  of  su^n 
contract  be  made  in  writing,  and  be  subscribed  by  tae  parties  to  Lo 
charged  thereby:"  See  statutes  of  New  York,  California,  and  Wis- 
consin, in  Browne  on  Statute  of  Frauds  (4th  ed.j,  Appx.    Source  of 
paragraph:  2  SchouJer  on  Personal  Property,  £  480.    And  see  fetory 
on  Sales,  #  265  ;  Wood  on  Frauds,  \  344.    Memorandum  under  statute 
of  frauds  generally :  See  note  to  McConnell  v.  Brillhart,  65  Am.  LUC. 
668. 

2  2  Schouler  on  Personal  Property,  §  481.    While  a  contract  to  be 
binding  ougat  to  be  mutual  in  obligations,  so  that  neither  party  couil 
sue  upon  it  Without  the  other,  yet  the  statute  memorandum  comports 
with  tae  theory  that  one  may  enforce  an  or...!  b^igain  against  the 
other,  though  it  could  not  be  enforced  against  himself:  2  Schouler 
on  Personal  Property,  \  483.    Consult  Langdeli's  Cases  on  Sales,  10112. 

3  See  Marsh  v.  Hyde,  3  Gray,  333  ;  Langdeli's  Cases  on  Sales,  313. 

4  See  Sievewright  v.  Archibald,  17  Q.  B.  103  ;  Langdeli's  Cases  on 
Sales,  452  ;  Partoii  v.  Crofts,  3.i  Law  J.  Com.  P.  18J ;  in  Com.  B.  N.  S. 
11 ;  Langdeli's  Cases  on  Sales,  506  ;  Lerned  v.  Wannemacher,  9  Allen, 
412  ;  Langdeli's  Cases  on  Sales,  5:;9  ;  Davis  v.  Shields,  26  Wend.  341 ; 
Langdeli's  Cases  on  Sales,  558;  Justice  v.  Lang,  42  I>.  Y.493;  1  Am. 
Kep.  573;  Williams  v.  Tucker,  47  Miss.  678;  2  Schouler  on  Personal 
Property,  g  482,  whence  paragraph  derived.    And  consult  Langdeli's 
Cases  on  Sales,  1032. 

5  See  Bennett's  Benjamin  on  Sales,  §  201. 

6  See  citations  in  next  note. 

7  2  Schouler  on  Personal  Property,  ?  483.    Whereas,  if  the  original 
contract  itself  be  in  writing,  different  memoranda,  executed  ut  sub- 
sequent times,  to  which  both  parties  were  not  privy,  could  h^\v  KO 
effect  in  varying  its  terms,  but  would  merely  evince  or  explain 
them :  2  Schouler  on  Personal  Property,  g  483 ;  referring  to  fcieve- 
wright  v.  Archibald,  17  Q.  B.  10J;  Laugdell's  Cases  on  Sales,  452. 
Discussion  of  scope  of  admissible  parol,  or  extrinsic  evidence  in  this 
connection:    See  Wood  on  Frauds,  ££384-402;   Bennett's  Benjamin 
and  1  Corbin's  Benjamin  on  Sales,  $,  202-219 ;  Blackburn  on  Sales, 
p.  45  ;  Campbell  on  Sales,  \\  196-199  ;  1  Chitty  on  Contracts  (llth  Am. 
ed.),  153,  n.  u.    Delivery  of  note  or  memorandum  :  2  .Schouler  on 
Personal  Property,  §  499 ;  citing,  Grant  v.  Levan,  4  Pa.  St.  393;  John- 
son v.  Dodgson,  2  Mees   &  W.  653;  Langdeli's  Cases  on  Sales,  413 ; 
Gibson  v.  Holland,  Law  R.  1  Com.  P.  1 ;  Langdeli's  Cases  on  Sales,  51o  ; 
Drury  v.  Young,  58  Md.  546 ;  42  Am.  Hep.  343. 

§  287.    Form  of    memorandum.  —  Formal  writing  not 
requisite.    The  statute  requires  no  formal  written  agree- 


411  fcTATtfTE- OF  FUA1JDS.  *   II      }   287 

inent  of  the  parties,1  but  simply  on  the  part  of  him  who 
is  to  be  charged,  a  writing  which  consistently  imports 
a  contract  of  sale.2 

Sufficient  modes  of  expression.  And  the  decisions  con- 
cerning the  form  of  the  memorandum  showthatbesid.es 
the  more  formal  shape  thereof,  it  may  be  expressed  by 
letter,3  or  telegram,4  or  acknowledgment  of  invoice,  or 
bill  of  parcel^;5  that  by  incorporation  or  reference,  it 
may  be  gathered  from  various  separate  writings,  made 
at  different  times,  which  have  an  intelligent  and  con- 
sistent purpose  in  evincing  a  concluded  bargain;6  that 
it  may  even  consist  of  the  defendant's  written  proposal 
if  supplemented  by  parol  proof  of  acceptance7  by  the 
plaintiff;8  and  that  the  writing  need  not  have  been  in- 
tended as  a  memorandum  by  the  defendant,  but  may 
even  amount  to  a  repudiation  of  the  oral  bargain,9  nor 
actually  addressed  to  the  plaintiff.10 

1  See  Langdell's  Cases  on  Sales,  1032 ;  Wood  on  Frauds,  §  345 

2  2  Sehouler  on  Personal  Property,  §  485. 

3  See  Wood  on  Frauds,  \  347.    The  uniform  doctrine  of  England 
and  the  United  States,  th.it  the  party  to  be  charged  is  the  only  one 
who  needs  to  sign,  renders  this  the  most  convenient  method  for 
drawing  buyer  or  seller  into  a  position  where  the  law  will  hold  him, 
especially  as  between  bargaining  parties  who  live  at  a  distance  from 
one  another :  See  Leather  Cloth  Co.  v.  Fieronimus,  Law  R.  10  Q.  B. 
140;  12  E:;g.  Rep.  211;  Wilkinson  v.  Evans,  Law  R.  1  Com.  P.  407; 
Langdell's  Cases  on  Sales,  523  ;  Gibson  v.  Holland,  Law  It.  1  Com.  P. 
1 ;  Langdell's  Cases  on  Sales,  513  ;  as  cited,  2  Sehouler  on  Personal 
Property,  g  485. 

4  See  Trevor  v.  Wood,  36  N.  Y.  307. 

5  See  Saunderson  v.  J  ackson,  2  Bos.  &  P.  238  ;  Langdell's  Cases  on 
Sales,  b40 ;  \viikinson  v.  Evans,  Law  R.  1  Com.  P.  407;  Langdell's 
Cases  on  Sales,  528  ;  Buxton  v.  Rust,  Law  R.  7  Ex,  1,  27  ) ;  1  Eng.  Rep. 
13.i,  and  2  Er>g.  Rep.  675  ;  M'Lean  v.  Nicoll,  7  Jur.  N  S.  999  •  Langdell's 
Cases  on  Sales,  487. 

6  See  Langdell's  Cases  on  Sales,  1032, 1033 ;  Peck  v.  North  Stafford- 
Shire  It.  H.  Co,  10  H.  L.  Cas.  472  ;  M'Lean  v.  Nicoll,_7  Jur.  N.  f  " 


,  .  .        .     . 

D.  lij ;  36 Eng.  Rep. 275;  Ridgway  v.\V barton, 611.  L.  Cas. 238;  Lerned 
v.  Wanuemaeher,  9  Allen,  412  ;  Langdell's  Cases  on  Sales,  5J9;  Drury 
v.  Young,  53  Md.  516;  42  Am.  Rep.  343;  Bennett's  Benjamin  and  l('->r» 
bin's  Benjamin  ou  Sales,  \\  222-223 ;  Browne  ou  Statute  of  Frauds, 


§   288  STATUTE   OF  FRAUDS.  412 

ft  350-353 ;  Wood  on  Frauds,  §  364,  et  seq. ;  Bill?;.  Bament,  9  Mees.  &  W. 
36  ;  Langdeli's  Cases  on  Sales,  161 ;  Joiinson  v.  Buck,  6  Vroom,  344  ;  10 
Am.  Rep.  243 ;  Smith  v.  Stantou,  15  Vt.  685;  Brown  v,  Whipple,  68 
ISr.  11.  229;  Smith  v.  Jones,  66  Ga.  33J  ;  42  Am.  Hep.  72;  North  v. 
Mendel,  73  Ga.  4uO  ;  54  Am.  Rep.  879,  881 ;  Beckwith  v.  Talbot,  95  U.  S. 
289.  Only  reference  to  price  in  unsigned  postscript:  Doughty  v. 
Manhattan  Brass  Co.  4  N.  E.  Rep.  (JS.  Y.)  747. 

7  See  Wood  on  Frauds,  §  378. 

8  See  Himrod  Furnace  Co.  v.  Cleveland  etc.  R.  R.  Co.  22  Ohio  St. 
451 ,  Reuss  v.  Picicsk'y,  Law  R.  1  Ex.  342  ;  Sanborn  v.  Flagler,  y  Allen, 
4/4  ;  Langdell's  Cases  on  bales,  604;  Washington  lee  Co.  v.  Webster, 
62  Me.  341 ;  16  Am.  Rep.  432.    i'orrn  of  mutual  agreement,  duplicates, 
etc..  See  Justice  v.  Lang,  42  N.  Y.  403;  1  Am.  Rep.  570;  Lerned  t. 
Wanuemacher,  9  Allen,  4x2 ;  Langdell's  Cases  on  Sales,  599. 

9  See  Wood  on  Frauds,  §  360.    The  latest  cases  on  this  point  side 
more  strongly  than  formerly  with  the  plaintiff,  who  seeks  the  remedy 
on  the  basis  of  such  admission  or  recognition  of  the  bargain  by  the 
defendant:  See  Bailey  v.  Sweeting,  9  Com.  B.  N.  S.  843  ;  Langdell's 
Casvjs  on  Sales,  480  •  Story  on  Sales,  £  272  a  ;  Wilkinson  v.  Evans,  Law 
R.  1  Com.  P.  4^7  ;  Langdell's  Cases  on  Sales,  528  ;  Buxton  v.  Itust,  Law 
R.  7  Ex.  1,  27J  ;  1  Eng.  Rep.  Io5,  and  2  Eng.  Rep.  67") ;  Leather  Cloth 
Co.  v.  liieroi.imus,  Law  R.  10  Q.  B.  140  ;  2  Eng.  Rep.  211.    And  corn- 
p^re  these  c~ses  with  Richards  v.  Porter,  6  Barn.  &  c.  4-7 ;  Langdell's 
Cases  on  Sales,  383  (1827) ;  and  Smith  v.  Surman,  9  Barn.  &  C.  561 ; 
Langdell's  Cases  on  Saks,  54(182;>;.    Consult,  also,  Ellis  v.  Deadinan, 
4  jJiob,  *U7  ;  J  ustice  v.  Lang,  42  N.  Y.  493 ;  1  Am.  Rep.  576. 

10  See  Wood  on  Frauds,  §  347  ;  Gibson  v.  Holland,  Law  R.  1  Com.  P. 
1;  Laiigdeil's  Cases  on  iSales,  513;  citing,  Sugdc-n  on  Vendors  and 
Purchasers (14th  Eng.  ed.),  139,  §  3J  ;  also,  Townsend  v.  Hargraves,  Ii8 
Mass.  3;>5;  Argus  Co.  v.  Albany,  55  N.  Y.  4^5  ;  Peabody  v.  Speyers,  56 
>f.  Y.  230  ;  Drury  v.  Young,  58  Md.  546 ;  42  Am.  Rop.  343 ;  Johnson  v. 
Dodgson,  2  Mees  &  W.  653  ;  Langdell's  Cases  on  Sales,  413.  Basis  of 
most  of  foregoing  matter:  2  Schouler  on  Personal  Property,  £H8o- 
4S9.  And  consult  Campbell  on  Sales,  199,  207. 

g  283.  Contents  of  memorandum.  —  In  general.  In 
order  to  constitute  a  sufficient  memorandum  of  the 
bargain  under  the  statute,  it  should  identify  the  parties 
to  the  sale,  and  contain  the  essential  terms  and  subject- 
matter  of  the  oral  contract.1 

Designation  of  parties.  And  the  principle  to  be 
gathered  from  the  decisions  concerning  the  sufficiency 
of  the  designation  of  the  parties  to  the  contract  appears 
to  be,  that  the  buyer  and  seller  must,  upon  reference  to 
the  memorandum,  and  consideration  not  merely  of 
literal  expressions,  but  also  of  the  context  and  the 
general  character  of  the  writing,  be  distinguishable  as 
bearing  that  mutual  relation,  each  being  indicated  iu 
his  own  capacity.2 


413  STATUTE   OF  FRAUDS.  §   288 

Price.  So  in  regard  to  the  consideration  of  the  con- 
tract,3 the  present  rule  seems  to  be,  that  if  the  oral  con- 
tract of  sale  expressly  fixed  a  specific  price,  and  the 
parties  did  not  depend  upon  the  legal  determination  of 
an  implied  or  reasonable  one,  that  definite  price  must 
appear  on  the  face  of  the  memorandum  or  writings 
connected  therewith,  as  an  essential  part  of  the  bar- 
gain ; 4  and  that  while  parol  evidence  cannot  be  intro- 
duced for  the  purpose  of  supplying  a  fixed  price  to 
complete  the  memorandum,  yet  resort  can  be  had  to 
such  evidence  in  order  to  show  that  there  was  a  price 
fixed,  which  ought  to  have  appeared  in.  the  memoran- 
dum, to  make  it  available  as  a  means  of  enforcing  the 
bargain.5 

Essential  terms  of  bargain.  All  the  terms  of  the  bar- 
gain which  are  substantial,  material,  or  essential,  must 
appear  in  the  memorandum,6  although  it  need  not  show, 
besides  the  main  points  of  the  contract,  each  particular 
incident  of  the  bargain,  nor  the  implied  terms  thereof.7 

Stipulations.  But  the  rule  that  the  enforcing  parly's 
stipulations  may  be  omitted  from  the  memorandum, 
seems  to  apply  only  to  the  case  of  stipulations  011  either 
side  which  are  decidedly  special  and  unusual ; 8  and  in 
the  courts  of  this  country  fatal  insufficiency  has  been 
considered  to  result  from  such  omissions  from  the 
memorandum  a3  a  stipulated  term  of  credit,  a  fixed 
date  of  performance,  a  condition  that  the  party  defend- 
ant should  first  approve  the  quality,  or  even  an  express 
warranty  of  the  quality  of  the  goods.9 

Time  and  place  of  delivery.  It  is  not  essential  to  the 
validity  of  a  contract  of  sale  of  goods,  that  it  should 
specify  time  or  place  of  delivery ; 10  but  if  there  be  a 
time  and  place  agreed  upon,  and  the  memorandum 
does  not  specL'y  it,  the  plaintiff  testifying  to  such  terms 
cannot  recover  upon  the  contract.11 


§    288  STATUTE    OF  FRAUDS.  414 

1  2  Schouler  on  Personal   Property,  §  440.     And  see  Wood  on 
Frauds,  g  34-~> ;  Langdell's  Cases  on  Sales,  10M3.     Insufficient  memo- 
randum :  North  v.  Mendel,  73  Ga.  400 ;  54  Am.  Rep.  879,  882. 

2  See  Allen  v.  Bennett,  3  Taunt.  169;  Langdell's  Cases  on  Sales, 
350;  Champion  v.  Plummer,  3  Bos.  &  P.  252  ;  Langdell's  Cases  on 
Sales,  343  ;  Sari  v.  Bourdillon,  1  Com.  B.  N.  S.  188  ;  Langdell's  Cases  on 
Sales,  472;  Vandenburgh  v.  Spooner,  Law  R.  1  Ex.  316  ;  Langdell's 
Cases  on  Sales,  531 ;  Newell  v.  Radford,  Law  R.  3  Corn.  P.  52  ;  Lang- 
doll's  Cases  oa  Sales,  534;  Harvey  v.  Stevens,  43  Vt.  6~>3;  Brown  r. 
Whipple,  58  N.  II.  229  ;  Sanborn  v.  Flakier,  9  Allen,  476  ;  Langdell's 
Cases  on  Sales,  604  ;  Coddington  v.  Goddard,  16  Grav,  433  ;  Langdell's 
Cases  on  Sales,  614  ;  Bailey  v.  Ogden,  3  Johns.  393 ;  3  Am.  Dec.  50'.); 
Langdell's  Cases  on  Sales,  588,  n.  1 ;  Calkins  v.  Falk,  1  Abb.  N.  Y.  App. 
201 ;  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.  446;  8  Fed.  Dec. 
632  ;  Langdell's  Cases  on  Sales,  583 ;  Wood  on  Frauds,  \\  3.54, 359  ;  Ben- 
nett's Benjamin  on  Sales,  gg  2:54-237;  1  Corbm's  Benjamin  on  Sales, 
%%  233-2'Ifi,  and  notes  ;  citing,  also,  Grafton  v.  Cummings,  99  U.  S.  101, 
107 ;  Coate  v.  Terry,  24  Up.  Can.  C.  P.  571. 

3  See  Wain  v.  Warlters,  5  East,  10  ;  Bennett's  Benjamin  on  Sales, 
H  232,  233 ;  note  to  MeConnell  v.  Brillhart,  65  Am.  Dec.  603  ;  Story  on 
Sales,  g  270,  p.  263,  n.  3. 

4  See  citations  in  next  note.    When  price  must  be  stated  :  Wood 
on  Frauds,  g  o^l. 

5  See  Acebal  v.  Levy,  10  Bing.  376  ;  Langdell's  Cases  on  Sales,  300  ; 
Hoadly  v.  McLaine,  10  Bing.  582;  Langdell's  Cases  o.i  Sales,  40-3  ; 
Elmore  v.  Kingscote,  5  Barn.  <fe  C.  383;  Langdell's  Cases  on  Sales, 
273;  Goodman  v.  Griffiths,  1  Hurl.  &  N.  574;  Langdell's  Cases  on 
Sales,  471 ;  Ashcroft  v.  Marrin,  4  Man.  &  G.  450  ;  Langdell's  Cases  on 
Sales,  4-.0.    Consult  Story  on  Sales,  g?  222,270;  Bennett's  Benjamin 
on  Sales,  g  243  ;  1  Corbm's  Benjamin  on  Sales,  \  251,  n.  46  ;  Browne  on 
Statute  of  Frauds,  \\  376.  387-408  ;  Wood  on  Frauds,  ?  3;n.    Sufficiency 
of  statement  of  price:  C    -wen  v.  Klous,  101  Mass.  443  ;  Salmon  Falls 
Manuf.  Co.  v.  Goddard,  JK  ilow.  446  ;  8  Fed.  Dec.  6:)2 ;  Langdell's  Cases 
on  Sales,  533.    But  compare  James  v.  Muir,  33  Mich.  223.    And  see 
Williams  v.  Robinson,  73  Me.  106  ;  40  Am.  Rep.  352.     Only  reference 
to  price  in  unsigned  postscript:  Doughty  v.  Manhattan  Brass  Co.  4 
N.  E.  Rep.  (X.  Y.)  747. 

6  See  Wood  on  Frauds,  §  370. 

7  See  2  Schoulcr  on  Personal  Property,  $  492;  citing,  Pitts  r. 
Beckett,  13  Mecs.  &  \V.  74  \ ;  Laugdell's  Cases  on  Sales,  443.    The 
memorandum  must  not  falsify  by  showing  a  bargain  different  in 
essence  from  that  orally  entered  into  ,  it  must  not  be  made  up  of 
contradictory  statements ;  and  it  must,  on  the  whole,  import  a  bar- 
gain :  2  Schoulcr  on  Personal  Property,  §  432 ;  referring  to  M'Lean  v. 
Nicholl,  7  Jur.  N.  S.  933  ;  Langdell's  Cases  on  Sales,  4>7  ;   Cooper  v. 
S:nith,  15  East,  103  ;  Langdell's  Cases  on  Sales,  355  ;  Srritli  v.  Surman, 
9  Barn.  &  C.  5J1 ;  Langdell's  Cases  on  Sales,  54  ;  Goodman  r.  Griffiths, 
1  Hurl.  &  N.  571 ;  Langdell's  Cases  on  Sales,  478.    But  compare  Wil- 
liams r.  Bacon,  2  Gray,  387;  Langdell's  Cases  on  Sales,  504.    Party 
offering  memorandum  cannot  discreditit  by  showing  that  it  does  not 
covtain  essential  terms:  See  M'Mullen  v.  Helborg,  4  Law  R.  Ir.  64; 
6  Law  R.  Ir.  463  ;  Remick  v.  Sandford,  118  Mass.  102. 

8  See  Sari  v.  Bourdillon,  1  Com.  B.  N.  S.  188  :  Langdell's  Cases  on 
Salos,  472.    And  compare  Egerton  v.  Matthews,  6  East,  307  ;  Lang- 
dell's Cases  on  Sales,  342.    It  is  not  necessary  that  the  note  or  memo- 
randum should  state  independent  and  collateral  stipulations  which 
formed  no  part  of  the  sale :  Coddington  v.  Goddard,  16  Gray,  436,  443  ; 
Langdell's  Cases  on  Sales,  614. 


415  STATUTE   OF  FRAUDS.  \  289 

9  See  Davis  v.  Shields,  26  Wend.  346  ;  LangdelPgf  Cases  on  Sales, 
5oS;  Boardman  v.  Spoon  er.  13  Allen,  35-5 ;  Langdell's  Cases  on  Sales. 
6LO  ;  Buck  v.  Pickwell,  27  Vt.  157 ;  Elfe  v.  Gadsden,  2  llieh.  37;5 ;  Soles 
v.  Hlckman,  20  Pa.  St.  180  ;  O'Donnell  v.  Leeraan,  43  Me.  158  ;  Peltier 
v.  Collins,  3  Wend.  43.) ;  23  Am.  Dec.  711 ;  Langdell's  Cases  on  Sales, 
548;  Story  on  Sales,  \  2,1;  2  Schouler  on  Personal  Property,  ?  402, 
whence  paragraph  derived.  Contents  of  sufficient  memorandum 
discussed :  C'impbell  oa  Sales,  207-215 ;  Bennett's  Benjamin  and 
Corbin's  Benjamin  on  Sales,  ?3  ff«-2  v4,  and  notes  ;  2  Schonler  on  Per- 
soual  Property,  \\  4JO-4JJ,  upon  which  foregoing  matter  based. 

10  Smith  v,  S:iell,  82  Mo.  215  ;  52  Am.  Hep.  3G5. 

11  Smith  r.  Snell,  82  Mo.  213  ;  52  Am.  Hep.  535.    And  see  Browne 
on  Statute  of  Frauds,  \  384. 

g  283,  Parol  ovidonca  concorninj  memorandum.  —  Gen- 
eral rule  against.  The  general  rule  is,  that  the  writing 
or  writings  resorted  to  as  a  memorandum  must,  in 
order  to  satisfy  the  statute,  so  substantially  express  the 
bargain  as  to  enable  the  court  to  make  out  what  it  was, 
without  resorting  to  parol  evidence.1 

To  show  that  writing  states  bargain.  But  where  the 
sufficiency  of  the  memorandum  is  at  issue,  it  is  com- 
petent to  show  by  parol  evidence  whether  or  not  the 
writing  offered  correctly  states  the  material  terms  of 
the  oral  contract,2  though  such  evidence  cannot  be 
adduced  to  aid  or  vary  those  written  terms.3 

Extraneous  evidence  of  trade  usage.  And  the  prevail- 
ing tendency,  with  regard  alike  to  the  parties,  the 
essential  terms,  the  subject-matter  of  the  bargain,  and 
the  fact  that  a  sale  is  constituted,  is  to  admit  extraneous 
evidence  of  trade  usage,4  in  furtherance  of  the  true 
meaning  of  the  parties,  wherever  the  memorandum 
furnishes  a  terse  statement  of  the  transaction,  such  as 
is  usual  in  mercantile  contracts.5 

Removal  of  ambiguity.  So  even  surrounding  circum- 
stances have  been  admitted  in  evidence  for  the  purpose 
of  identifying  the  subject-matter  or  explaining  some 
technical  expression  contained  in  the  memorandum, 
and  in  general  for  removing  an  ambiguity  upon  its 
face.w 


§   290  STATUTE  OF  FRAUDS.  416 

1  See  Brown  v.  Whipple,  58  N.  H.  220 ;  Washington  Ice  Co.  r. 
Webster,  62  Me.  341 ;  16  Am.  Rep.  462  ;  Eggleston  v.  Wagner,  46  Mich. 
610  ;  Story  on  Sales,  ?  269  ;  Bennett's  Benjamin  and  1  Corbin's  Benja- 
min on  Sales,  g  210  ;  Campbell  011  Sales,  1M  ;  2  Kent  Com.  511. 

2  See  citations  in  next  note. 

3  See  Langdell's  Cases  on  Sales,  1032 ;  Pitts  v.  Beckett,  13  Mees.  & 
W.  743  ;  Langdell's  Cases  on  Sales,  443  ;  Acebal  v.  Levy,  10  Bing.  376  ; 
Langdell's  Casos  on  Sales,  300  ;  Codclington  v.  Goddard,  16  Gray,  436  ; 
Langdell's  Cases  on  Sales,  614  ;  Wood  on  Frauds,  g  890. 

4  See  Wood  on  Frauds,  \  397. 

5  See  Salmon  Falls  Manuf.  Co.  v.  Goddard,  14  How.  446 ;  8  Fed. 
Dec,  6j2  ;  Langdell's  Cases  on  Sales,  533  ;  Newell  ?'.  Radford,  Law  R. 
3  Com.  P.  52  ;  Langdell's  Cases  o:»  Sales,  534  ;  Coddington  v.  Goddard, 
16  Gray,  4CG  ;  Langdeil's  Cases  on  Sales,  614. 

6  See  Spicer  v.  Cooper,  1  Q.  B.  424 ;  Miller  r.  Stevens,  100  Mass. 
51S  ;  \Villiums  ?-.  Robinson,  73  Me.  186;  40  Am.  Rep.  352  ;  also,  Mac- 
donald  v.  Longbottom,  1  El.  &  E.  977;  Johnson  r.  Raylton,  Lnw  R.  7 
Q.  B.  D.  438  ;  Drury  •?'.  Young,  58  Md.  546 ;  42  Am.  Rep.  343.    Source  of 
foregoing  matter  :  2  Schouler  on  Personal  Property,  \  4;»3.    And  con- 
sult further,  Bennett's  Benjamin  on  Sales,  \\  213-215  ;  1  Corbin's  Ben- 
jamin on  Sales,  \\  211-213;  Story  on  Sales,  \  269 ;  Wood  on  Frauds, 
\  3;)3. 

\  290.  Modification  of  original  bargain.  —  Showing  sub- 
sequent oral  agreement.  In  regard  to  an  oral  agreement, 
subsequent  to  the  written  memorandum,  the  doctrine 
of  Massachusetts  and  some  other  States  appears  to  be, 
that  the  writing  ia  not  conclusive,  but  that  any  subse- 
quent oral  agreement  may  enlarge  the  time  of  perform- 
ance or  vary  other  terms  of  the  contract,  or  show  its 
waiver  and  discharge  altogether.1 

Exclusive  of  such  agreement.  But  the  doctrine  of  the 
lato  English  cases,  which  has  been  deemed  the  better 
opinion,  is  that  a  written  memorandum  which  falls 
within  the  statute  of  frauds,  cannot  be  varied  by  any 
subsequent  agreement  which  is  not  expressed  in  writ- 
ing ; 2  and  that  parol  evidence  i3  inadmissible  to  show  a 
change  in  the  time  or  place  of  delivery,  or  other  modifi- 
cation of  the  original  bargain.3 

Rescission  of  prior  contract.  It  is  also  decided  in  Eng- 
land that  where  the  parties  enter  into  a  new  oral  agree- 
ment, whose  effect  would  be  incidentally  to  rescind  the 
previous  written  contract  by  essentially  modifying  its 


417  STATUTE   OF  FRAUDS.  \    291 

terms,  the  modification  is  inoperative  as  a  rescission  of 
the  written  contract,  and  does  not  prevent  its  enforce- 
ment;4 though  it  is  as  yet  unsettled  whether  a  com- 
plete abandonment  and  rescission  of  the  contract  might 
not  appear  by  oral  testimony.5 

1  Cummings  v.  Arnold,  3  Met.  486  ;  Langdell's  Cases  on  Sales,  575  ; 
Stearns  v.  Hill,  9  Cush.  31.    And  see  Whittier  v.  Dana,  10  Allen,  326  ; 
Langdell's  Cases  on  Sides,  608  ;  Kribs  v.  Jones,  44  Md.  396  ;  also,  Rich- 
ardson v.  Cooper,  25  Me.  450  ;  Negley  v.  Jeffers,  28  Ohio  St.  00  ;  Browne 
ou  Statute  of  Frauds,  \\  40')-428.    This  view  follows  the  common-law 
rule,  which  permits  the  oral  variance  of  a  written  contract  not  under 
seal :  See  Goss  v.  Lord  Nugent,  5  Barn.  &  Adol.  65. 

2  See  citations  in  next  note. 

3  See  Stead  v.  Dawber,  10  Ad.  &  E.  57 ;  Langdell's  Cases  on  Sales, 

418  ;  Marshall  v.  Lynn,  6  Mees.  &  W.  10.) ;  Langdell's  Cases  on  Sales, 
429 ;  Noble  v.  Ward,  Law  R.  1  Ex.  117  ;  Law  R.  2  Ex.  135 ;  Langdell's 
Cases  on  Sales,  502.     Contra,  Cuff  v.  Penn,  1  Mtiule  &  S.  21 ;  Langdell's 
Cases  on  Sales,  358 ;  Leather  Cloth  Co.  v.  Hieronimus,  Law  R.  10 
Q.  B.  140;  12  Eng.  Rep.  211.    And  consult  Swain  v.  Semens,  0  Wall. 
272  ;  Dana  v.  Hancock,  30  Vt.  616. 

4  Noble  v.  Ward,  Law  R.  1  Ex.  117  ;  Law  R.  2  Ex.  135;  Langdell's 
Cases  on  Sales,  5:0 ;  Moore  v.  Campbell,  10  Ex  323  ;  Langdell's  Cases 
on  Sales,  4fi  >.    And  see  Oglo  v.  Earl  Vane,  Law  R.  2  Q  B.  275  ;  Law  R. 
3  Q.  B.  272  ;  Stewart  v.  Eddowes,  Law  R.  9  Com.  P.  397. 

5  Bennett's  Benjamin  and  1  Corbin's  Benjamin  on  Sales,  §  212 ; 
Browne  on  Statute  of  Frauds,  g?  400-428.    Source  of  foregoing  matter : 
2  Schouler  on   Personal  Property,  ?495.     Consult,  also,   Bennett's 
Benjamin  on  Sales,  \\  216-218  ;  1  Oorbin's  Benjamin  on  Sales,  \\  214- 
218  ;  Langdell's  Cases  on  Sales,  1033  ;  Wood  on  Frauds,  §  403. 

$  291.  Signature  to  memorandum,  —  Place  of  signing  or 
subscribing.  The  party  to  be  charged,  as  distinguished 
from  the  party  electing  to  enforce  the  contract,1  must 
place  his  name  in  some  part  of  the  instrument,2  which 
may  be  either  at  the  top  or  the  bottom,  or  in  the  body 
of  the  instrument,3  where  the  statute  requires  "sign- 
ing,"4 but  must  be  at  the  end  of  the  memorandum 
where,  as  in  some  States,  the  statute  departs  from  the 
usual  phraseology  and  requires  the  writing  to  be  "sub- 
scribed" instead  of  "signed."5 

Mode  of  signing.  The  signature  may  be  in  lead-pencil 
instead  of  ink,6  or  by  printing  or  stamping,  if  the  cir- 
cumstances are  such  as  to  give  it  a  significance  beyond 
that  of  an  unused  blank,  and  really  equivalent  to  a 


§    291  STATUTE   OF   FRAUDS.  418 

memorandum  in  actual  use  with  the  name  as  p'art  of 
it  ;7  it  may  be8  by  mark9  or  by  initials  ; 10  it  may  be  by 
the  party  to  be  charged  himself,  or  by  another,  if  bona 
fide,  and  the  authorized  signature  of  such  party  to  the 
memorandum;11  but  whatever  the  mode  or  place  of 
the  signature,  it  must  have  been  intended  as  such,  and 
not12  to  serve  merely  by  way  of  personal  description.13 
Connected  papers.  Since  the  written  memorandum 
may  be  made  up  of  two  or  more  papers  which  bear  a 
mutual  relation,  a  signature  may  suffice  if  it  governs 
the  whole  by  suitable  reference,  though  it  is  actually 
placed  only  upon  one  of  the  papers;14  but  it  would 
appear  from  the  English  decisions  that  the  reference  to 
connect  two  papers  or  two  clauses  so  as  to  make  one 
signature  apply  to  both,  must  be  from  what  is  signed 
to  what  is  unsigned,  and  not  the  reverse.15  Where  i\ 
contract  was  made  up  of  letters,  and  the  only  reference 
to  price  was  contained  in  an  unsigned  postscript  to  a 
letter,  in  answer  to  which  an  order  was  sent,  \vhich 
was  acknowledged  as  "booked,"  it  was  held  that  all 
the  letters  were  so  connected  by  their  contents  as  to- 
gether to  constitute  a  valid  contract,  and  avoid  the 
statute  of  frauds.16 

1  See  Allen  r.  Bennett,  3  Taunt.  169  ;  Langdell's  Cases  on  Sales, 
SSO;  Justice  t'.LaHg,  42  N.Y.  493;  1  Am.  Bep.  67ft ;  Bennett's  Ben jamln 

irvl  1  Corbin's  Benjamin  on  Sales,  \  25.) ;  Story  on  Sales,  \  266  ;  Blar-k- 
burn  oa  Sales,  §  6J ;  Campbell  on  Sales,  21.3  ;  Wood  on  Frauds,  £  405. 

2  2  Schouler    on  Personal    Property,  \  497,  whence    paragraph 
derived.    And  see  Wood  on  Frauds,  \  415. 

3  See  Wood  on  Frauds,  \  416. 

4  SPG  Johnson  v.  Hodgson,  2  Mees.  &  W.  65°, ;  Langdell's  Cases  on 
S-iles,  413  ;  Allen  v.  Bennett,  3  Taunt.  16.) ;  Langdell's  Cases  on  Sules, 
3."*);  Harvey  r.  Stevens,  43  Vt.  653:  Coddington  r.  Goddard,  16  Gray, 
4.1;  Langdell's  Cases  on  Sales,  614  ;  Clason  r.  Bailey,  14  Johns.  484 ; 
Langdeli's  Cases  on  Sales,  541  ;  Drury  r.  Young,  58  Md.  546;  42  Am, 
Hep.  343  ;  Browne  on  Statute  of  Frauds,  \\  355,  358. 

5  See  Browne  on  Statute  of  Frauds  (4th  ed.),  Appx. ;  Davis  v. 
Shields,  26  Wend.  341  ;  Langdell's  Cases  oa  Sales,  558. 

0  See  Merritt  ?'.  Clason,  12  Johns.  102;  7  Am.  Deo.  286  ;  Langdell's 
Cases  on  Sales,  5.^7  ;  Clason  r.  Bailey,  14  Johns.  484 ;  Langdell's  Cases 
OM  Sales,  541 ;  Geary  v.  Physic,  5  Barn.  &  C,  234 ;  Wood  on  Frauds, 


419  STATUTE   OF  FRAUDS. 

7  See  Schneider  v.  Norris,  2  Maule  .$  S.  286 ;  Langdell's  Cases  on 
Sales,  362 ;  Wood  on  Frauds,  §  412.    And  compare  Hawkins  v.  Chace. 
19  Pick.  502  ;  Langdell's  Cases  on  Sales,  554. 

8  See  Wood  on  Frauds,  \  413. 

9  2  Kent  Com.  oil  ;  Bickley  v.  Keenan,  60  Ala.  293. 

10  See  Phillimore  v.  Barry,  1  Camp.  513 ;  Langdell's  Cases  on  Sales, 
346  ;  Caton  v.  Caton,  Law  R.  2  H.  L.  127 ;  stated,  Wood  on  Frauds, 
1 419. 

11  2  Kent  Com.  511 ;  Helshaw  v.  Langley,  11  Law  J.  Ch.  17.    Signa- 
ture by  agent :   Wood  on  Frauds,  g  407. 

12  See  Wood  on  Frauds,  §  409. 

13  See  Selby  v.  Selby,  3  Mer.  2  ;  2  Schouler  on  Personal  Property, 
1497,  whence  paragraph  mainly  derived.    Consult  further  concern- 
ins:  signature,  Wood  on  Frauds,  §  405-41!) :  Langdell's  Cases  on  Sales, 
10H4  ;  Bennett's  Benjamin  on  Sales,  \\  255-264  a  ;  1  Corbin's  Benjamin 
on  Sales,  \\  ?r>r>-2f>4  ;  Story  on  Sales,  §  266  ;  Campbell  on  Sales.  \\  216- 
221,  stating  that  a  telegram  sent  in  the  ordinary  way  is  sufficiently 
signed  according  to  the  statute  of  frauds,  as  held  in  Godwin  v.  Francis. 
Law  R.  5  Com.  P.  2<)5. 

14  See  Buxton  v.  Rust,  Law  R.  7  Ex.  1, 279  ;  1  Eng.  Rep.  135,  and  2 
Eng.  Rep.  67') ;  Brown  v.  Whipple,  58  N.  H.  229;  Morton  v.  Dean,  13 
Met.  335  ;  Browne  on  Statute  of  Frauds,  \\  346-348,  371-376. 

15  See  Caton  v.  Caton,  Law  R.  2  H.  L.  Cas.  127  ;  as  cited  Bennett's 
Ben  j  imin  on  Sales,  \  ?64  ;  and  stated,  Wood  on  Frauds,  §  419.    Basis 
of  paragraph :  2  Schouler  on  Personal  Property,  §  498. 

16  Doughty  ?'.  Manhattan  Brass  Co.  4  N.  E.  Rep.  (N.  Y.)  747; 
affirming,  31  Hun,  315,  mem.    But  it  was  declared  that  if  the  letter 
with  the  postscript  stood  alone,  as  containing  the  contract,  it  would 
be  necessary  to  hold  that  it  was  not  subscribed  within  the  intent  of 
the  statute  :   Doughty  ?>.  Manhattan  Brass  Co.  4  N.  E.  Rep.  747  ;  101 
K.  Y.  614  ;  referring  to  James  v.  Patten,  6  N.  Y.  44. 

\  292.  Compliance  by  agents.  —  In  general.  Com- 
pliance by  an  agent  as  legally  representing  his  principal 
would  appear  to  be  justified  even  where,  as  in  some  of 
the  United  States,  the  local  enactment  makes  no  special 
mention  of  agents,1  as  well  as  under  the  express  pro- 
vision of  the  statute,2  that  the  written  memorandum 
may  be  signed,  not  only  by  the  parties  to  be  charged, 
but  likewise  by  "their  agents  thereunto  lawfully 
authorized."3 

Authority  of  agent.  It  is  not  necessary  that  there 
should  be  an  appointment  in  writing,4  nor  need  the 
authority  have  been  previously  conferred,  if  the  agent's 
act  be  subsequently  ratified ; 5  nor  need  the  authority 
be  specially  conferred  at  all,  but  it  is  deducible  from  the 


g   293  STATUTE  OF  FRAUDS.  420 

course  of  the  agent's  employment,  as  particularly  illus- 
trated in  the  case  of  brokers  and  auctioneers.6 

AgenVs  capacity,  etc.  A  memorandum  may  be  signed 
by  or  on  behalf  of  both  seller  and  buyer  ; 7  and  though 
a  person  should  sign  in  his  own  name,  such  signature 
may  be  binding  if  he  is  mutually  understood  to  sign  as 
agent  for  one  of  the  contracting  parties  ; 8  but  one  whose 
employment  is  essentially  on  behalf  of  the  seller  will 
not  readily  be  supposed  to  have  authority  to  bind  the 
bu3rer  likewise  by  a  written  memorandum;9  nor  in 
general  is  it  enough  that  the  third  party  is  lawfully 
authorized  to  sign,  but  he  must  sign  in  the  capacity  of 
agent,  as  may  be  shown  by  parol  evidence.10 

Auctioneer'1  s  memorandum.  While  an  auctioneer, 
whose  authority  to  bind  the  parties  is  founded  on  the 
method  of  conducting  a  public  sale,  is  the  seller's  agent 
throughout,  he  is  the  buyer's  agent  only  from  the  fall 
of  the  hammer,  and  for  a  memorandum  made  con- 
temporaneous with  the  acceptance  of  the  bid,  and  unless 
his  conduct  repels  the  inference  of  his  agency  for  the 
buyer  for  such  purpose.11 

1  See  Browne  on  Statute  of  Frauds  (4th  ed.),  Appx. 

2  See  29  Charles  II.  ch.  3,  \  17. 

3  2  Schouler  on  Personal  Property,  §  500.    And  consult  Wood  on 
Frauds,  \  4'2'y. 

4  See  Wood  on  Frauds,  ?  420.    So  as  to  original  authority  to  buy 
or  sell :   See  Soames  v.  Spencer,  Dowl.  &  R.  32  ;  Langdell's  Cases  on 
Sales,  368  ;  Sanborn  r.  Flagler,  9  Allen, 474 ;  Langdell's  Cases  on  Sales, 
PO I ;  Merritt  v.  Clason, 52  Johns.  102 ;  7  Am.  Dec.  286  ;  Langdell's  Cases 
on  Sales,  537. 

5  See  Newton  v.  Bronsen,3Kern.587;  Merritt  r.  Clason,  12  Johns. 
102;  7  Am.  Dec.  280;  Langdell's  Cases  on  Sales,  537 ;  Bennett's  Ben- 
jamin on  Sales,  9  205;  Story  on  Sales,  §  267  ;  Wood  on  Frauds,  \  426. 
Revocation  of  authority :  See  Herman  ?'.  Neale,  2  Camp.  337 ;  Lang- 
doll's  Cases  on  Sales,  348 ;  Williams  v.  Bacon,  2  Gray,  387  ;  Langdell's 
Cases  on  Sales,  594. 

6  2  Schouler    on  Personal    Property,  §  500,  whence    paragraph 
mainly  derived.    And  consult  Langdell's  Cases  on  Sales,  1034.    Lim- 
ited or  general  authority,  and  delegation  of  authority:   See  Pitts  r. 
Beckett,  13  Mees.  &  W.  743  ;  Langdell's  Cases  on  Sales.  443  ;  Hender- 
son r.  Barnewall,  1  Younge  <fr  J.  387  ;  Coddington  r.  Goddard,  16  Gray, 
436  ;  Langdell's  Cases  on  Sales.  614  ;  Peirce  r.  Corf,  Law  R.  9  Q.  B. 
210  ;  8  Eng.  Rep.  316  ;  Browne  on  Statute  of  Frauds,  \  370. 


421  STATUTE  OF  FRAUDS.  g   293 

7  The  agent  must  be  agent  of  both,  or  neither  will  be  bound  :  See 
Smith  v.  Neef  us,  53  Barb.  63. 

8  Wiener  v.  Whipple,  53  Wis.  298  ;  40  Am.  Rep.  775. 

9  See  Graham  v.  Fretwell,  3  Man.  &  G.  363 ;  Langdell's  Cases  on 
Sales,  433  ;  Graham  v.  Musson,  5  Bing.  N.  C.  603 ;  Langdoll's  Cases  on 
Sales,  425 ;  Murphy  v.  Boese,  Law  R.  10  Ex.  126 ;  12  Eiig.  Rep.  5d7. 
But  compare  Durrell  v.  Evans,  1  Hurl.  &  C.  174  ;  Langdell's  Cases  on 
bales,  494. 

10  See  Gosbell  v.  Archer,  2  Ad.  &  E.  500 ;  Trueman  v.  Loder,  11 
Ad.  &  E.  589;  Kenworthy  t;.  Schofield,  2  Barn.  <fe  C.  945;  Langdcll's 
Cases  on  Sales,  373 ;  Sanborn  v.  Flagler,  9  Allen.  474  ;  Langdell's  Cases 
on  Sales,  604;  Williams  v  Bacon,  2  Gray,  387;  Langdell's  Cases  on 
Sales,  594  ;  Baldwin  ^^  Bank  of  Newbury,  1  Y/all.  234.  Place  of  signa- 
ture or  use  of  lead-pencil  instead  of  ink,  immaterial :  See  Merritt  v. 
Clason,  12  Johns.  102  ;  7  Am.  Dec.  286;  Langdell's  Cases  on  Sales,  5°7. 
Signature  by  telegraph  clerk  or  operator  sufficient  where  draft  mess- 
age not  left  at  office:  See  Godwin  v.  Francis,  Law  R.  5  Com.  P.  2C5  ; 
Trevor  v  Wood,  36  N.  Y.  307 ;  Wood  on  Frauds,  §  428  ;  referring,  also, 
to  McBlain  v.  Cross,  25  L.  T.  N.  S.  804.  Charging  party  himself  us 
agent;  agency  for  undisclosed  principal:  See  Wright  v.  Darmah,2 
Camp.  203 ;  Langdell's  Cases  on  Sales,  348  ;  Farebrother  v.  Simmons, 
5  Barn.  &  Aid.  333 ;  Langdell's  Cases  on  Sales,  370  ;  Shurman  v.  Brandt, 
Law  R.  6  Q,.  B.  720  ;  Higgins  v.  Senior,  8  Mees.  &  W.  834 ;  also,  Sanborn 
v.  Flagler,  9  Allen,  477 ;  Langdell's  Cases  on  Sales,  604  ;  Wiener  v. 
Whipple,  53  Wis.  298;  40  Am.  Rep.  775.  Unadopted  modifications: 
Pitts  v.  Beckett,  13  Mees.  &  W.  743 ;  Langdell's  Cases  on  Sales,  443. 
Signing  for  non-existing  or  non-authorizing  principal :  See  Kelner  v. 
Baxter,  Law  R.  2  Com.  P.  174.  Basis  of  foregoing  matter  :  2  Schouler 
Consult  further,  Blackburn  on 


11  See  Mews  v.  Carr,  1  HurL  &  N.  484  ;  Langdell's  Cases  on  Sales, 
475  ;  Hinde  ?>.  Whitehouse,  7  East,  558 ;  Langdell's  Cases  on  Sales,  lO? ; 
Bartlett  v.  Purnell,4  Ad.  <fe  E.  792 ;  Johnson  v.  Buck, 6  Vrooni.  3^3  ;  10 
Am.  Rep.  243 ;  Burke  v.  Haley,  2  Gilm.  614 ;  Horton  v.  McCarty,  53 
Me.  394.  Entries  on  auctioneer's  memorandum  book,  by  auctioneer 
or  his  clerk,  of  terms,  conditions,  and  stipulations  of  salo:  See 
Bird  v.  Boulter,  2  Barn.  &  Adol.  4^3  ;  Langdell's  Cases  on  Sales,  395  ; 
Peirce  v.  Corf,  Law  R.  9  Q.  B.  210 ;  8  Eng.  Rep.  316 ;  Henderson  v. 
Barnewall,  1  Younge  &  J.  387;  Langdell's  Cases  on  Sales,  384 ;  Hinde 
v.  Whitehouse,  7  East,  558 ;  Langdell's  Cases  on  Sales,  102 ;  Alna  v. 
Plummer,  4  Me.  258  ;  Harvey  v.  Stevens,  43  Vt.  653  ;  Morton  v.  Dean, 
13  Met.  335 ;  Coles  v.  Bowne,  10  Paige,  520 ;  Johnson  v.  Buck,  6  Vropm, 
338 ;  10  Am.  Rep.  243 ;  Cath'cart  v.  Keirnaghan,  5  Strob.  12?  ;  Norris  v. 
Blair,  39  Ind.  90.  Stealthy  separate  entries  on  strictly  private  book : 
See  Peirce  v.  Corf,  Law  R.  9  Q.  B.  210  ;  8  Ens:.  Rep.  316  ;  Baltzen  v. 
Nicolay,  53  N.  Y.  467.  Basis  of  paragraph :  2  Schouler  on  Personal 
Property,  §  506.  And  see  Blackburn  on  Sales,  p.  78  ;  Bennett's  Benja- 
min and  1  Corbin's  Benjamin  on  Sales,  §g  268-270 ;  Campbell  on  Sales, 
223,224;  Browne  on  Statute  of  Frauds  (4th  ed),  Appx.;  Langdell's 
Cases  on  Sal'es,  1034  ;  Wood  on  Frauds,  W  422-424, 427. 

\  293.    Broker's  memorandum,  —  For  both  parties.    Bro- 
kers, so  far  as  their  business  brings  them  into  mutual 
relation  with  buyer  and   seller,  are  agents  for  both 
parties,1  duly  empowered  by  virtue  of  their  employ - 
NEWMAEK  SALES.  — 36. 


§   293  STATUTE  OF  FRAUDS.  422 

ment  to  make  a  sufficient  memorandum  which  shall 
bind  each  principal.2 

For  one  party.  But  there  are  cases  in  which  a  broker 
has  been  treated,  with  corresponding  restriction  upon 
his  authority  to  sign,  as  broker  for  one  party  and  not 
for  the  other,3  and  the  extent  of  the  rights  and  liabilities 
of  brokers  must  still  be  influenced,  in  some  respects  by 
jocal  usage.4 

Memorandum  book.  Thus  brokers  in  most  parts  of 
the  United  States  keep  a  memorandum  book  in  which 
they  make  briefly  expressed  entries  of  each  sale  trans- 
action,5 which  as  a  mode  of  compliance  with  the  statute 
of  frauds  are  quite  favorably  regarded 6  by  the  courts  of 
this  country,7  however  concise  they  may  be,  if  they  do 
not  materially  vary,  by  way  of  omission  or  otherwise, 
from  the  oral  contract.8 

Bought  and  sold  notes,  etc.  But  in  England  most  of 
the  decisions  have  turned  upon  rules  and  regulations 
made  imperative  by  statutes  which,  until  1870,  and 
particularly  with  reference  to  brokers  in  London,  re- 
quired each  broker  not  only  to  give  bond  and  keep  a 
memorandum  book,  but  also  to  deliver,  upon  request, 
a  contract  note  to  both  buyer  and  seller.9  In  the  same 
connection  have  arisen  numerous  disputes  as  to  the 
legal  effect  of  "bought  and  sold  notes"  of  various 
kinds,10  named  for  their  initial  words,  and  with  which 
the  contract  notes  may  or  may  not  be  classed,  but 
which,  instead  of  professing  to  be  an  exact  transcript  of 
the  broker's  memorandum,  were  rather  in  most  cases 
corresponding  written  expressions  of  the  bargain,  to 
suit  the  convenience  of  the  respective  parties.11 

1  See  Wood  on  Frauds,  g  429. 

2  See  Heyman  v.  Neale,  2  Camp.  337  ;  Fowler  v.  Hollins,  Law  B. 
7  Q.  B.  616 ;  Langdell's  Cases  on  Sales,  348  ;  3  Eng.  Bep.  232  ;  affirmed, 
Law  B.  7  H.  L.  7o7  ;  14  Eng.  Bep.  138 ;  Hinckley  v.  Arey ,  27  Me.  362  ; 
Coddingtoii  v.  Goddard,  16  Gray,  442  ;  Langdell's  Cases  on  Sales,  614; 
Clason  v.  Bailey,  14  Johns.  484  ;  Langdell's  Cases  on  Sales,  541 ;  Story 


423  STATUTE   OF  FRAUDS.  §   2£3 

on  Agency,  \  28.  Broker  contracting  without  a  principal :  Shurman  v. 
Brandt,  Law  R.  6  Q.  B.  720.  And  compare  Humfrey  v.  Dale,  7  El.  & 
B.  266  ;  Fleet  v.  Murton,  Law  B.  7  Q.  B.  127 ;  1  Eng.  Rep.  32  ;  Mollett 
v.  Robinson,  Law  R.  5  Com.  P.  648 ;  Law  R.  7  Com.  P.  84  ;  1  Eng.  Rep. 
335. 

3  See  Moore  v.  Campbell,  10  Ex.  323;  Langdell's  Cases  on  Sales, 
465 ;  M'Mullen  v,  Helberg,  4  Law  R.  IT.  94  ;  Davis  v.  Shields,  20  Wend. 
341;  Langdell's  Cases  on  Sales,  558;  Coddington  v.  Goddard,  16  Gray, 
436  ;  Langdell's  Cases  on  Sales,  614. 

4  2  Schouler  on  Personal  Property,  §  507,  whence  preceding  para- 
graph also  derived.    And  see  Campbell  on  Sales,  925. 

5  See  citations  in  succeeding  note. 

6  See  Wood  on  Frauds,  \  430. 

7  Divergence  between  English  and  Americen  view  of  broker's 
books  discussed:  Langdell's  Cases  on  Sales,  1035. 

8  See  Coddington  v.  Goddard,  16  Gray,  430 ;  Langdell's  Cases  on 
Sales,  614  ;  Boardman  v.  Spooner,  13  Allen,  353  ;  Langdell's  Cases  on 
Sales,  610  ;  Hinckley  v.  Arey,  27  Me.  362;  Clason  v.  Bailey,  14  Johns. 
484 ;  Langdell's  Cases  on  Sales,  541. 

9  See  citations  in  succeeding  notes. 

10  See  discussion  in  Langdell's  Cases  on  Sales,  1035. 

11  2  Schouler  on  Personal  Property,  §  507,  whence  section  mainly 
derived.    The  real  terms  of  the  bargain  were  manifest,  if  the  bought 
and  sold  notes  or  contract  notes  and  broker's  memorandum  all 
corresponded,  and  did  not  differ  essentially  from  one  another :  2 
Schouler  on  Personal  Property,  §  507.    See  result  of  English  author- 
ities concerning  variance,  in  such  cases  summarized  in  Bennett's 
Benjamin  on  Sales,  $$  294-302 ;  quoted,  Wood  on  Frauds,  §  430 ;  citing, 
Heyman  v.  Neale,  2  Camp.  377 ;  Langdell's  Cases  on  Sales,  348  ;  Hodg- 
son v,  Davis,  2  Camp.  531 ;  Bold  v.  Rayner,  1  Mees.  &  W.  342  ;  Thorn- 
ton v.  Charles,  9  Mees.  &  W.  802;  Langdell's  Cases  on  Sales,  436; 
Hawes  v.  Forster,  1  Moody  <fe  R.  363  ;  Langdell's  Cases  on  Sales,  410  ; 
Parton  v.  Crofts,  16  Com.  B.  N.  S.  11 ;  Langdell's  Cases  on  Sales, 
508  ;  Heyworth  v.  Knight,  17  Com.  B.  N.  S.  208  ;  Gregson  v.  Rucks,  4 
Q.  B.  747  ;  Siovewright  v.  Archibald,  17  Q.  B.  115  ;  Langdell's  Cases  on 
Sales,  452  ;  Thompson  v.  Gardner,  Law  R.  1  C.  P.  D.  777  ;  18  Eng.  Rep. 
328  ;  Thornton  v.  Kempster,  5  Taunt.  70S  ;  Langdell's  Cases  on  Sales, 
36-1;  Maclean  v.  Dunn,  4  Bing.  722;  Langdell's  Cases  on  Sales,  STOj 
Kempson  v.  Boyle,  3  Hurl.  ,fe  C.  763 ;  Radford  v.  Newell,  Law  R.  3 
Com.  P.  52.    Consult,  also,  Blackburn  on  Sales,  8%  89,  et  seq. ;  Camp- 
bell on  Sales,  427-438  ;  Story  on  Sales,  9  269 ;  Wood  on  Frauds,  ?§  430- 
434,436.    Bought  and  sold  notes  in  this  country:  See  Coddington  v, 
Goddard,  16  Gray,  436;   Langdell's   Cases   on  Sales,  614;   Davis  v. 
Shields,  26  Wend.  341 ;  Langdell's  Cases  on  Sales.  558  ;  Suydam  v.  Clark, 
2 Band.  133;  Langdell's  Cases  on  Snl^s,  5S1 ;  Butler  v.  Thompson,  11 
Blatchf.  533 ;  92  U. S.  412  ;  Newberry  v.  Wall, 65  N.  Y.  484  ;  84  N.  Y. 576, 


§  294  CONDITIONAL  SALES.  424 


CHAPTER   XXL 

CONDITIONAL   SALES. 

?  ?94.  Conditions  in  general. 

I  J.;5.  Conditions  in  sales. 

\  _-)6.  Impossibility  of  performance. 

I  297.  Stipulations  concerning  time  and  place  of  performance 

1  298.  Notice. 

\  299.  Payment  as  condition  precedent. 

§  300.  Conditions  sustained  despite  delivery. 

\  301.  Rights  of  creditors  and  purchasers. 

\  302.  Waiver,  estoppel,  etc. 

\  303.  Waiver  by  delivery. 

\  304.  Seller's  delay,  etc. 

?  305.  Resumption  of  possession. 

?  306.  Sales  on  instalment  plan. 

$  307.  Various  conditions. 

?  308.  Sales  "  on  trial." 

2  .m  Right  to  return  goods. 
\  310.  Sale  or  return. 

|  311.  Sale  of  goods  "  to  arrive/ 

\  312.  Sale  by  sample  or  description. 

?  313.  Genuine  character  of  securities. 

\  314.  Failure  to  furnish  stipulated  securities. 

§  294.  Conditions  in  general.  —  Nature  and  kinds.  A 
condition  is  a  clause  in  a  contract  or  agreement  which 
has  for  its  object  to  suspend,  rescind,  or  modify  the 
principal  obligation.1  Conditions  may  be  precedent, 
concurrent,  or  subsequent.2 

Condition  precedent.  A  condition  precedent,3  is  one 
which  is  to  be  performed  before  some  right  dependent 
thereon  accrues,  or  some  act  dependent  thereon  is 
performed.4 

Conditions  concurrent.  Conditions  concurrent5  are 
those  which  are  mutually  dependent,6  and  are  to  be 
performed  at  the  same  time.7 


425 


CONDITIONAL  SALES.  3   294 


Condition  subsequent.  A  condition  subsequent 8  is  one 
referring  to  a  future  event,  upon  the  happening  of 
which  the  obligation  becomes  no  longer  binding  upon 
the  other  party,  if  he  chooses  to  avail  himself  of  the 
condition.9 

Illustrations.  A  contract  which  provides  for  subjec- 
tion of  an  article  to  trial,  and  becomes  absolute  only  on 
approval,  creates  a  condition  which  must  be  satisfied 
before  the  promise  it  qualifies  becomes  effectual,  and 
which  is  therefore  a  condition  precedent,  so  that  the  title 
will  not  pass  until  the  option  is  determined.10 

Performance,  etc.  Before  any  party  to  an  obligation 
can  require  another  party  to  perform  any  act  under  it, 
he  must  fulfill  all  conditions  precedent  thereto  imposed 
upon  himself ;  and  must  be  able  and  ofter  to  fulfill  all 
conditions  concurrent  so  imposed  upon  him  on  the  like 
fulfillment  by  the  other  party,  except  in  cases  of  timely 
and  unretracted  notice  by  such  other  party  that  he  will 
not  perform.11 

1  1  Bouvier  Law  Diet.  tit.  Condition  (14th  ed.),  312,  denning  the 
various  classes  of  conditions.    And  consult  1  Abbott's  Law  Diet.  260. 
An  obligation  is  conditional  when  the  rights  or  duties  of  any  party 
thereto  depend  upon  the  occurrence  of  an  uncertain  event :  Cal.  Civ. 
Code,  \  1434.    Conditions  in  contract  discussed:  2  Schouler  on  Per- 
sonal Property,  \\  277-284  ;  1  Wharton  on  Contracts,  \l  545-617. 

2  Cal.  Civ.  Code,  §  1435.    And   see   succeeding   subdivisions   of 
section. 

3  See  Hickman  v.  Shimp,  109  Pa.  St.  16  ;  20  The  Reporter,  345. 

4  Cal.  Civ.  Code,  j  1436.    And  compare  1  Bouvier  Law  Diet.  tit. 
Conditions  (14th  ed.),  313 ;  Story  on  Sales,  \  247.    Consult,  also,  Win- 
field's  Words  etc.;  citing,  Redman  v.  .Etna  Ins.  Co.  49  Wis.  438 ; 
Moore  v.  Moore,  47  Barb.  262  ;  Selden  v.  Pringle,  17  Barb.  466  ;  Ludlow 
v.  N  Y.  <fe  H.  R.  R.  Co.  12  Barb.  442.    Where  there  is  a  condition  pre- 
cedent attached  to  the  contract,  the  title  in  the  property  does  not 
pass  to  the  vendee  until  performance  or  waiver  of  the  condition,  even 
though  there  be  an  actual  delivery  of  the  possession  :  State  ?».  O'Neil, 
58  Vt.  140,  159  '  2  Atl.  Rep.  586, 589.    And  where  goods  are  sent  C.  O.  D. 
the  title  does  not  pass  until  they  are  accepted  and  paid  for  :  State  v. 
O'Neil,  58  Vt.  140 ;  56  Am.  Rep.  557  ;  referring  to  People  v.  Shriver,  31 
Alb.  L.  J.  163  ;  23  Fed.  Rep.  134. 

5  See  Fishback  t.  Van  Dusen,  33  Minn.  Ill,  116. 

6  Dependent  and  independent  stipulations  In  con  tracts  discussed  : 
2  Schouler  on  Personal  Property,  \\  278,  270.    And  see  -  P-irsons  on 
Contracts,  528,  529 ;  Cadwell  v.  Blake,  6  Gray,  402 ;  Langdell's  Cases  on 
Contracts  (1st  ed.),  626. 


§   295  CONDITIONAL  SALES.  426 

7  Cal.  Civ.  Code,  ?  1437.  See,  also,  Campbell  on  Sales,  275  ;  refer- 
ring generally  to  notes  to  Pordage  v.  Col-\  1  Wms.  Saund.  319  n ;  Lang- 
dell's  Cases  on  Contracts  (1st  ed.),  &iO  ;  and  to  Cutter  v.  Powell.  2 
Smith's  Lead.  Cas.  1 ;  and  for  instances  relating  to  sale0  of  f  oorls  to 
Atkinson  ?'.  Smith,  14  Mees.  &  W.  695 ;  Withers  v.  Reynolds,  2  li..:ii. 
&  Adol.  882  ;  and  Bank  art  r.  Bowers,  Law  B.  1  Com.  P  484.  See 
these  cases  in  Langdell'a  Cases  on  Contracts  (1st  ed  ),  748,  751,  7S3» 

b    See  Hickman  v.  Shimp,  109  Pa.  St.  16  ;  20  The  Reporter,  345. 

9    Cal.    Civ.    Code,  §  14"8.    And  compare    Story  on  Sales,  §248; 

1  Bouvier  Law  Diet.  tit.  Condition  (14th  ed.),  H13.    Consult,  also.  Win- 
field's  Words  etc.  130 ;  quoting,  Chapin  v.  School  District,  35  N.  H. 
4-"0 ;  N.  &  N.  W.  B.  B.  Co.  v.  Jones,  2  Cold.  584 :  Ludlow  v.  N.  Y.  &  H. 
B.  B.  Co.  12  Barb.  442. 

10  Hickman  v.  Shimp.  109  Pa.  St.  16;  20  The  Beporter,  345.    And 
in  this  respect  it  differs  from  what  is  denominated  among  mer- 
chants a  "sale  and  return,"  which  creates  a  condition  subsequent 
mcrelv,  and  passes  the  title  at  once,  subject  to  tb'*  right  to  rescind 
and  return  :  Hickman  v.  Shimp,  109  Pa.  St.  16  ;  20  The  Beporter,  345; 
referring  to  Hunt  v .  Wyman,  100  Mass.  198  ;  Whartou  on  Contracts, 
5:0. 

11  See  Cal.  Civ.  Code,  ??  1439,  1440.    Performance  of  conditions, 
prevention,  waiver,  impressibility,  etc.:  See  2  Schouler  on  Personal 
Property,  $2281-284.    Conditions  in  general,  dependence  of  stipula- 
tions, performance,  etc  :  See  Bennett's  Benjamin  on  Sales,  \\  5C.O-573 ; 

2  Corbin's  Benjamin  on  Sales,  f?  852-868  ;  Story  on  Sales,  \\  24fi-248, 
251.    It  is  well  settled  that  a  conditional  sale,  dependent  upoii  an  act 
to  be  done,  does  not  pass  title  if  such  act  is  not  done :  Sere  r.  Mc- 
Govern,  65  Cal.  244  ;  referring  to  Whitney  r,  Eaton,  15  Gray,  225 ; 
Langdoll'a  Cases  on  Sales,  717  :  Stone  r.  Perry,  fiO  Me.  48 ;  Paul  v. 
Beed,  fv2  N.  H.  136;  Bussell  r.  Minor,  22  Wend!  65D.    And  hence  it  is 
erroneous  to  hold  that  although  the  conditions  of  a  sale  of  partner- 
ship property,  requiring  the  payment  of  the  consideration  within  a 
limited  time,  had  not  been  performed,  yet  the  title  passed  to  the  pur- 
chaser who  became  the  absolute  owner  of  the  property :  Sere  v.  Mc- 
Govern,  Go  Cal.  244. 

\  295.  Conditions  in  sales.  —  Absolute  or  conditional 
sale,  etc. — Whether  a  transaction  in  which  the  seller 
delivered  a  bill  of  sale  of  the  goods  to  the  purchaser, 
and  accepted  the  latter's  notes  for  payment,  was  a  con- 
ditional or  an  absolute  sale,1  is  a  question  that  the  jury 
may  properly  decide  from  the  evidence.2 

Condition  or  warranty.  It  has  been  held  that  any 
undertaking  which  ma}^  be  implied  on  the  part  of  the 
vendor  as  to  the  merchantable  quality  of  logs,  which 
were  so  situated  that  they  could  not  be  inspected  by 
the  vendee  at  the  time  of  an  executory  contract  for  their 
sale,  is  to  be  treated  as  a  condition  rather  than  a  war- 
ranty, as  to  obvious  defects,  discoverable  upon  delivery.3 


427  CONDITIONAL  SALES.  §   295 

Prerequisite  of  performance  of  conditions  precedent, 
etc.  It  is  an  elementary  principle  that  where  there  is  a 
condition  precedent4  or  concurrent  embodied  in  a  sale,5 
upon  the  performance  of  which  the  transfer  of  title 
depends,6  the  buyer  will  acquire  no  title  to  the  thing,7 
even  as  against  his  creditors,  and  notwithstanding  de- 
livery of  the  chattel^  before  that  condition  has  been  ful- 
filled.8 And  the  same  rule  applies  where  there  are 
other  conditions  precedent  on  the  buyer's  part  than 
that  of  payment,  and  other  matters  dependent  thereon 
than  the  transfer  of  the  title.9 

Act  of  third  person.  So  the  principle  stated  is  appli- 
cable wherever  by  the  terms  of  the  bargain,  as  made 
by  the  parties,  something  essential  is  to  be  first  done  by 
some  third  party,10  as  where  the  price  is  to  be  fixed  by 
valuers,11  or  on  a  sale  of  goods  subject  to  the  inspection 
or  approval  of  some  person  mutually  designated  by  the 
parties  ;12  or  where  a  chattel  is  sold,  subject  to  the  test 
of  a  third  person  as  to  whether  it  accomplishes  the 
intended  purpose.13 

1  Various  conditions  in  sales :  See  later  section  on  that  subject. 
Conditional  sale  distinguished  from  mortgage :  Slowey  v.  McMurfay, 
27  Mo.  113  ;  72  Am.  Dec.  251,  n.  257  ;  \  24,  on  SALE  OB  MORTGAGE. 

2  Crabtree  v.  Segrist,  6  Pacif.  Rep.  (IS".  M.)  202.    But  a  writing 
showing  an  absolute  sale  of  a  horse  cannot  be  changed  or  enlarged 
by  parol  evidence  to  the  effect  that  such  sale  was  in  fact  conditional, 
as  against  an  attaching  creditor  who  had  been  shown  the  writing  : 
Dixon  v.  Blondin,  5  Atl.  Rop.  (Vt.)  514  ;   referring  to  San  born  r. 
Chittenden,  27  Vt.  171.    Evidence  held  to  warrant  if  it  did  not  require 
a  finding  that  a  sale  was  unconditional:  Marble  v.  Moore,  102  Mass. 
443. 

3  Thompson  v.  Libby,  29  N.  W.  Rep.  (Minn.)  150.    The  receiving 

and  retaining  of  the  logs  by  the  vendee  under  the  contract,  with 
knowledge  of  such  defects  though  complainingly  done,  was,  how- 


ever, considered  to  have  the  effect  of  a  waiver  of  such  implied 
condition  as  to  quality:  Thompson  v.  Libby,  29  N.  \V.  Rep.  r.O ; 
referring  to  Haase  v.  Nonnimacher,  21  Minn.  486,  and  cases  cited; 
Gaylord  Manuf.  Co.  v.  Allen,  53  N.  Y.  515 ;  Locke  v.  Williamson,  40 
AVis.  377;  Olson  v.  Mayer,  56  Wis.  5'l ;  14  N.  \V.  Rep.  640;  Pollock 
Pri  i.  Contr.  464.  Condition  precedent  distinguished  from  warranty : 
See  2  ft-houler  on  Personal  Property,  gg  316,  344,  349.  And  consult 
l-it"r  Rations  of  this  chapter  on  SALES  BY  SAMPLE  OK.  DESCRIPTION, 
and  GENUINE  CHARACTER  OF  SECURITIES. 

4    See  Hickman  v.  Shimp.  109  Pa.  St.  16  ;  20  The  Reporter,  345. 


§   296  CONDITIONAL  SALES.  428 

5  See  preceding  section  on  CONDITIONS  ix  GENERAL. 

6  Transfer  of  title  in  general :  See  chapter  on  that  subject. 

7  See  Sere  v.  McGovern,  65  Cal.  244. 

8  See  2  Kent  Com.  497 ;  Story  on  Sales,  g  251 ;  2  Schouler  on  Per- 
sonal Property,  §  285 ;  citing.  Bishop  r.  Shiilito,  2  Barn.  &  Aid.  82:); 
Langdell's  Cases  on  Sales,  710  ;  Shepherd  r.  Harrison,  Law  K.  4  Q.  B. 
!;)(!.  4:«  ;  Law  R.  5  H.  L.  116  ;  Langdell's  Cases  on  Sales,  996  ;  Strong 
v.  Taylor,  2  Hill,  326. 

9  As  the  furnishing  of  bags  regarded  as  a  condition  precedent  to 
delivery:  Russell  v.  Witt, 38  Ind.  19;  2  Schouler  on  Personal  Prop- 
erty, ?  2S5  ;  referring,  also,  to  Thompson  v.  Ray,  46  Ala.  224 ;  Lowry  v. 
Barelii,  21  Ohio  St.  324. 

10  See  citations  in  succeeding  notes.    Action  of  third  party  in  con- 
tracts generally :  1  \Vharton  on  Contracts,  § J  593-596. 

11  See  Vickers  v.  Vickers,  Law  R.  4  Eq.  529  ;  Nutting  v.  Dickinson, 
8  Allen,  540  ;  Hutton  v.  Pearce,  26  Ark.  382. 

12  See  Brogden  v.  Marriott,  2  Bing.  N.  C.  473  ;  Thurnell  r.  Balblrnie, 
2  Mees.  &  W.  786;  Dunstan  v.  McAndrew,  44  N.  Y.  72  ;  Nofsingrr  r. 
Ring,  71  Mo.  149  ;  38  Am.  Rep.  456  (fitness  of  meat);  Bennett's  Ben- 
jamin on  Sales,  §  574. 

13  See  Robbins  r.  Clark,  129  Mass.  145  ;  Batterbury  v.  Vyso,  2  Hur> 
&  C.  42.    Source  of  paragraph :  2  Schouler  on  Personal  Property* 
\  286.    Payment  dependent  0:1  action  of  third  person,  etc. :  See  Mills 
v.  Bayley,  2  Hurl.  &  C.  36  ;  Roberts  v.  Watkins,  18  Com.  B.  N.  S.  273 ; 
Thompson  v.  Ray,  46  Ala.  224  ;  Newlan  v.  Dunham,  60  111.  233  ;  Dun- 
stan  v.   McAndrew,  44  N.  Y.  72.    Title  vesting  primarily  in  third 
party  :   See  Worthy  v.  Cole,  69  X.  C.  157.    Other  instances  where 
co-operation  of  third  party  prerequisite  to  buyer's  acquisition  of 
title :  See  Perkins  v.  Dacon,  13  Mich.  8t ;  De  Loarh  v.  Hardee,  64  Ga. 
94.    Condition  that  some  act  shall  be  done  by  a  third  person  further 
discussed :  2  Corbin's  Benjamin  on  Sales,  §  870,  n.  16 ;  Campbell  on 
Sales,  316,  317. 

§  296.  Impossibility  of  performance.  —  In  general.  The 
usual  exceptions  as  to  waiver1  and  impossibility 2  apply 
to  conditions  contained  in  a  contract  of  sale.3  Impossi- 
bility of  performance,  owing  to  circumstances  which 
impute  110  fault  to  the  opposite  party,  affords  an  excuse 
for  performance  within  the  same  narrow  and  uncertain 
range  marked  out  for  other  contracts.* 

Actual  impossibility.  Actual  impossibility  to  perform, 
which  arises  from  extraneous  circumstances  of  inability 
merely,  in  the  particular  instance,  does  not  amount  to 
physical  or  moral  impossibility,  as  the  want  of  money 
to  make  a  stipulated  payment,  etc.,5  cannot  excuse  one 
from  the  legal  obligation  to  perform  the  condition,  or 
from  liability  in  damages  for  non-performance ; 6  nor 


429  CONDITIONAL   SALES.  \   296 

does  this  effect  result  from  the  happening  of  a  contin- 
gency which,  from  the  nature  of  the  transaction,  the 
party  binding  himself  ought  to  have  expressly  guarded 
against.7 

Legal  impossibility.  But  legal  impossibility,  occa- 
sioned by  the  passage  of  a  statute  rendering  the  act 
illegal,  will,  by  the  courts  of  this  country,  in  further- 
ance of  the  local  public  policy,  be  deemed  a  sufficient 
excuse  for  non-performance.8 

Act  of  God  or  human  agency.  Yet  while  many  of  the 
modern  decisions  are  less  particular  than  former  ones 
in  admitting  impossibility  as  an  excuse  for  not  fulfill- 
ing bargains,9  and  the  obligor  has  been  relieved  in 
several  instances  on  the  ground  that  performance  had 
become  physically  impossible  by  the  act  of  God,10  still 
there  are  other  cases  which  clearly  refuse  to  extend  so 
sweeping  a  cause  of  exemption  to  an  impossibility 
occasioned  by  any  human  agency.11 

1  Waiver  in  general :  2  Bouvier  Law  Diet.  (14th  ed.) 

2  See  succeeding  portions  of  section.    Impossibility  of  perform- 
ance of  contracts  discussed  :  12  Cent.  L.  J.  4.    And  see  City  Bank  v. 
Babcock,  1  Holmes,  180-184 ;  8  Fed.  Dec.  568,  and  notes,  570. 

3  2  Schouler  on  Personal  Property,  ?  287  ;  referring  in  regard  to 
waiver  or  prevention  of  performance  to  Clarke  v.  Westropp,  18  Com. 

B.  765 ;  and  also  to  Batterbury  v.  Vyse,  2  Hurl.  &  C.  42 ;  and  as  to 
disfavor  shown  to  excuse  of  impossibility,  to  Smoot  v.  United  States, 
15  Wall.  36. 

4  2  Schouler  on  Personal  Property,  §  287. 

5  Further  illustrations :  James  v.  Morgan,  1  Lev.  Ill ;  Thornburn 
v.  Whitacre,  2  Baym.  Ld.  1164.    And  see  Gilpins  v.  Consequa,  1  Peters 

C.  C.  91. 

6  2  Schouler  on  Personal  Property,  \  287,  whence  paragraph  de- 
rived.   And  consult  2  Corbin's  Benjamin  on  Sales,  \  864,  n.  14. 

7  See  Kearon  v.  Pearson,  7  Hurl.  &  N.  386. 

8  See  Bailey  v.  De  Crespigny,  Law  R.  4  Q.  B.  180;  2  Schouler  on 
Personal  Property,  \  287  ;  Bennett's  Benjamin  on  Sales,  \  571 ;  Camp- 
bell on  Sales,  315  ;  citing,  also.  Newby  v.  Sharp,  Law  B.  8  Ch.  D.  39  ; 
25  Eng.  Bep.  99. 

9  Compare  Barker  v   Hodgson,  3  Maule  &  S.  267,  with  Ford  v. 
Cotesworth,  Law  B.  7  Q.  B.  127  ;  Kearon  v.  Pearson,  7  Hurl.  &  N.  386  ; 
and  Taylor  v.  Caldwell,  3  Best  &  Smith,  826. 

10  The  seller  is  held  to  be  relieved  from  his  promise  to  deliver  by 
the  death  of  the  horse  sold,  or  the  spoliation  of  a  specific  growing 


§   297  CONDITIONAL,  SALES.  430 

crop  from  natural  causes  before  the  time  of  gathering  it :  See  Shep. 
Touch.  173  ;  Howell  v.  Coupland,  Law  R.  9  Q.  B.  462  ;  Law  R.  1  Q.  B. 
258  ;  16  Eng.  Rep.  312. 

11  2  Sehouler  on  Personal  Property,  ?  288,  whence  paragraph  de- 
rived ;  citing,  Shep.  Touch.  173  ;  Bennett's  Benjamin  on  Sales,  \  571  ; 
Mill  Dam  Foundry  t».  Hovey,  21  Pick.  441 ;  Harmony  ?\  Bingham,  2 
Kern.  106.  Destruction  by  fire  of  an  unfinished  chattel  which  is 
being  made  to  order,  does  not  exempt  the  buyer  from  obligation  to 
deliver:  Jones  v.  St.  John's  College,  Law  R.  6  Q.  B.  115;  School 
District  ?'.  Dauchy,  25  Conn.  530  ;  68  Am.  Dec.  371.  Compare  further 
on  destruction  of  chattel.  Dexter  v.  Norton,  47  N.  Y.  62  ;  7  Am.  Rep. 
41-5,  with  Bigler  v.  Hall,  54  X.  Y.  167.  And  consult  2  Corbin'.s  Benja- 
min on  Sales,  §  862,  n.  11 ;  Campbell  on  Sales,  314,  315, 

$  297.  Stipulation  concerning  time  and  place  of  perform- 
ance.—  Time  of  performance.  The  question  whether 
stipulations  as  to  the  time  of  performance  under  a  con- 
tract of  sale  are  in  the  nature  of  conditions  precedent, 
depends  upon  the  point  whether  time  appears  to  have 
been  fairly  understood  between  the  parties  as  an  essen- 
tial element  in  the  performance  of  the  contract.1  But 
the  prevailing  rule,  applied  frequently  in  contracts  for 
successive  deliveries,  goes  only  to  the  extent  of  render- 
ing the  breach  of  diligent  performance  with  respect  to 
time,  a  cause  of  action  for  damages  sustained  by  the 
buyer,  like  other  independent  stipulations  on  the  sell- 
er's part,  and  not  an  occasion  for  rescinding  the  con- 
tract entirely,  on  the  ground  that  a  condition  precedent 
had  failed.2 

Place  of  performance.  So  where  a  contract  to  sell 
cotton  at  a  given  price  to  arrive  at  one  place,  per  ships 
from  another,  made  these  provisions,  "cotton  to  be 
taken  from  the  quay ;  customary  allowances  of  tare  and 
draft ;  and  the  invoice  to  be  dated  from  date  of  delivery 
of  last  bale,"  it  was  held  that  this  clause  as  to  place  of 
delivery  was  not  a  condition  precedent  against  the 
sellers,  but  a  stipulation  in  their  favor,3  and  that  the 
contract  in  effect  placed  the  cotton  at  the  buyer's  risk 
and  charge  from  the  time  of  landing  on  the  quay.4 
Yet  under  proper  circumstances  a  stipulation  as  to 


431  CONDITIONAL  SALES.  g   298 

place  of  performance  is  to  be  treated  as  a  condition 
precedent.5 

1  2  Schouler  on  Personal  Property,  ?  289,  whence  next  paragraph 
also  derived.    And  see  Story  on  Sales,  §  310. 

2  See  Jonassohn  v.  Young,  4  Best  &  Smith,  296  ;  LangdelPs  Cases 
on  Contracts  (1st  eel.).  722 ;  Simpson  v.  Crippin,  Law  R.  8  Q.  B.  14  ;  4 
Eng.  Rep.  200 ;  doubting,  Hoare  v.  Rennie,  5  Hurl.  &  N.  19 ;  Lang- 
dell's  Cases  on  Contracts  (1st  ed.),  574  ;  Bennett's  Benjamin  on  Sales, 
\  593 ;  Rogers  v.  Woodruff,  23  Ohio  St.  632 ;  13  Am.  Rep.  276.    Consult 
further,  discussion  of  subject  in  Campbell  on  Sales,  281-294 ;  2  Cor- 
biri 's  Benjamin  on  Sales,  ?  909,  n.  26.    Latest  leading  cases  on  subject : 
Honck  v.  Muller,  Law  R.  7  Q.  B.  D.  92 ;  36  Eng.  Rep.  264,  n.  270 ;. 
Mersey  Steel  &  Iron  Co.  v.  Naylor,  Law  R.  9  App.  C.  434  ;  36  Eng. 
Rep.  164  ;  Blackburn  v.  Reilly,  47  N.  J.  L.  290  ;  54  Am.  Rep.  159 ;  Nor- 
rington  v.  Wright,  115  U.  S.  188 ;  21  Am.  Law  Reg.  395,  n.  3i)8 ;  Filley  v. 
Pope,  115  U.  S.  213;  Pope  v.  Porter,  102  N.  Y.  366  ;  7  N.  E.  Rep.  304. 

3  Neill  v.  Whitworth,  Law  R.  1  Com.  P.  684. 

4  Neill  v.  Whitworth,  Law  R.  1  Com.  P.  164 ;  as  stated,  2  Schouler 
on  Personal  Property,  £  290,  whence  next  paragraph  also  derived. 

5  Thompson  v.  Ray,  46  Ala.  224. 

I  298.  Notice. —  When  requisite.  Where  sales  are 
made,  as  is  sometimes  the  case,  "  upon  notice,"  or  with 
reference  to  a  designated  time,  or  the  happening  of 
some  event,  upon  notice  of  which  an  act  is  to  be  per- 
formed,1 the  general  rule  is  that  one  who  binds  himself 
to  do  a  thing  at  a  designated  time,  or  on  the  occurrence 
of  a  particular  event,  must  take  notice  at  his  peril,  and 
perform  his  promise2  when  the  time  comes  or  the  event 
occurs.3  But  if  according  to  a  just  interpretation  of  the 
contract  it  is  the  other  party  who  was  bound  to  give 
notice  when  the  time  had  arrived  or  the  event  hap- 
pened, the  giving  of  such  notice  becomes  the  real  con- 
dition precedent*  in  the  contract,5  to  which  other  acts 
like  delivery  are  postponed.6 

Reasonable  time  after.  So  if  a  person  has  contracted 
to  do  a  thing  on  demand7  or  on  notice,  he  will  be  enti- 
tled to  a  reasonable  time  in  which  to  do  the  thing,  after 
a  demand  made  or  notice  given.8 

Terminating  agreement.  Where  a  contract  for  the  de- 
livery of  chattels  of  a  certain  description  from  time  to 
time  does  not  bind  to  any  fixed  limit,  so  that  it  is  left 


g   299  CONDITIONAL   SALES.  432 

optional  with  either  party  to  put  an  end  to  the  agree- 
ment, the  party  seeking  to  terminate  should  give  notice 
to  the  other  of  his  intention  in  the  premises.9 

1  Notice  in  general:  2  Bouvier  Law  Diet.  (14th  ed.)  236.    Notice 
in  relation  to  contracts :  1  Wharton  on  Contracts,  \\  667,  574. 

2  See  Vyse  v.  Wakefield,  6  Mees.  &  W.  442. 

3  2  Schouler  on  Personal  Property,  §  291.    And  this  is  the  rule  not 
only  where  the  event  is  of  a  public  character,  so  that  buyer  and 
seller  are  presumed  to  have  equal  opportunity  of  ascertaining  when 
the  condition  precedent  must  be  performed,  but  more  particularly 
whenever  the  fact  upon  which  the  contract  turns  lies  peculiarly 
within  his  own  knowledge  and  privity:  2  Schouler  on  Personal 
Property,  \  291.    And  see  Watson  v.  Walker,  23  N.  H.  471, 431. 

4  Condition  precedent :  See  \  294,  on  CONDITIONS  IN  GENERAL. 

5  Notice  of  name  of  ship  in  sales  of  goods  "  to  arrive  " :  Campbell 
on  Sales,  296  ;  citing,  Busk  r.  Spence,  4  Camp.  329  ;  Greaves  v.  .Legg, 
9  Ex.  709  ;  11  Ex.  642  ;  2  Hurl.  &  N.  110. 

6  2   Schouler  on   Personal   Property,  §291.     And  when  actual 
knowledge  of  the  essential  fact  is  peculiarly  in  the  obligee's  breast, 
and  particularly  where  the  obligee  reserves  to  himself  the  control  of 
the  fact,  so  that  the  exigency  for  performance  shall  occur  when  he 
so  chooses,  and  not  before,  he  is  bound  to  give  notice  of  the  fact 
before  he  can  compel  the  obligor  to  perform  his  engagement :  2 
Schouler  on  Personal  Property,  \  201 ;  citing,  Bennett's  Benjamin  on 
Sales,  \  577 ;  Haule  v.  Heming,  6  Mees.  &  W.  654  ;  Vyse  v.  Wakefield, 
6  Mees.  &  W.  442  ;  Watson  v.  Walker,  23  N.  II.  471 ;  Halnes  v.  Tucker, 
50  N.  H.  307 ;  Quarles  v.  George,  23  Pick.  400.    Consult,  further,  2  Cor- 
bin's  Benjamin  on  Sales,  £  872,  n.  18. 

7  Demand  or  request  in  relation  to  contracts  :  1  Wharton  on 
Contracts,  \\  575-577. 

8  Bennett's  Benjamin  on  Sales,  §  577,  n.  e ;  referring  to  Baker  v. 
Mair,  12  Mass.  121 ;  Newcomb  v.  Brackett,  16  Mass.  101  ;  Eames  v. 
Savage.  14  Mass.  425 ;  and  also  to  Topping  v.  Root,  5  Cowen,  404  ;  San- 
born  v.  Benedict,  78  111.  309 ;  Watson  v.  Garren,  6  Up.  Can.  Q.  B.  542. 

9  Houston  etc.  R.  Co.  v.  Mitchell,  38  Tex.  85  ;  as  stated,  2  Schouler 
on   Personal  Property,  §291«;  referring,  also,  for  need  of  notice 
where  option  given,  to  Kirkpatrick  v.  Alexander,  44  Ind.  595. 

g  299.  Payment  as  condition  precedent.  —  Transfer  of 
title  and  risk.  It  is  the  settled  general  doctrine  that 
so  soon  as  a  bargain  of  sale  of  personal  property  is 
struck,  the  contract  becomes  complete,  without  actual 
payment  or  delivery,1  and  the  property  and  risk  of  ac- 
cident to  the  goods  vests  in  the  buyer,2  although  the 
payment  or  tender  of  the  price  is  often  a  condition  pre- 
cedent implied  in  the  contract,  the  performance  of 
which  alone  entitles  the  buyer  to  the  possession  of  the 
goods.3 


433  CONDITIONAL  SALES.  §   299 

Payment  and  delivery  as  concurrent  conditions.  Thus, 
where  the  circumstances  of  the  transaction  are  such  as 
to  indicate  that  the  seller  agrees  to  transfer  the  property 
in  consideration,  not  of  tho  buyer's  engagement  to  pay, 
as  in  credit  sales,4  but  of  his  actually  paying  or  securing 
tho  price,  as  in  sales  for  payment  on  delivery,5  there  are 
concurrent  conditions  binding  upon  each  party,0  con- 
sisting of  the  seller's  obligation  to  deliver,  and  the  buy- 
er's obligation  to  pay;7  and  neither  party  can  sue  the 
other  for  breach  of  contract  without  averring  that  lie 
performed  the  condition  on  his  part,  or  offered  to  do  so.8 

Performance  or  ivaiver  of  condition.  And  in  this 
country  it  has  been  laid  down  that  where  there  is  a 
condition  precedent  attached  to  a  contract  of  sale  and 
delivery,9  the  property  does  not  vest  in  the  purchaser 
on  delivery  until  he  performs  the  condition ,  01  the 
seller  waives  it ; 10  and  that  the  right  continues  in  the 
vendor,  even  against  creditors  and  subsequent  pur- 
chasers of  the  vendee.11 

Delivery  with  reservation  of  title.  Accordingly,  it  is 
well  settled  that  where  goods  are  sold  and  delivered  on 
condition  that  the  property  therein  shall  not  vest  in 
the  buyer  until  the  purchase  money  is  paid  or  secured, 
such  payment  or  adjustment  of  the  purchase  money  is 
subject  to  the  usual  exception  attending  performance, 
a  condition  precedent12  on  the  part  of  the  buyer  to  the 
transfer  of  title13  to  himself  from  the  seller.14 

1  See  citations  in  next  note. 

2  Willis  v.  Willis,  6  Dana,  48.    And  see  2  Kent  Com.  402  ;  Morse  v. 
Sherman,  106  Mass.  430,  433  ;  Wade  v.  Moffltt,  21  111.  110  ;  74  Am.  Dec. 
7) ;  Gilmour  v.  Supple,  11  Moore  P.  C.  C.  551,  650  ;  Langdell's  Cases  <>'i 
Sales,  632  ;  Calcutta  Co.  v.  De  Mattos,  32  Law  .1.  Q.  B.  32(5,  320 ;  Dixon 
v.  Yates,  5  Barn.  &  Adol.  313  ;  Boss'  Leading  Cases,  55,  74. 

3  Willis  v.  Willis.  6  Dana,  48,  40.    And  see  Barnes  ?'.  Bartlett,  15 
Pick.  71,  77  ;  §  224,  on  TRANSFER  OF  TITLE  WITHOUT  DELIVERY. 

4  See  \  272,  in  chapter  on  PAYMENT. 

5  Rules  of  evidence  in  determining  whether  sale  for  cash  on 
delivery  or  upon  credit :  2  Schouler  on  Personal  Property,  \  W7. 

NEWMARK  SALES.  — 37. 


§  299 


CONDITIONAL   SALES.  434 


6  Concurrent  conditions :  See  §  294,  on  CONDITIONS  IN  GENERAL. 

7  See  citations  in  next  note.    When  nothing  is  said  in  a  contract 
for  the  sale  of  goods  as  to  the  time  of  payment,  the  law  presumes 
that  the  sale  is  for  cash:  Fishback  t'.  Van  Dusen,  3:}  Minn.  Ill,  116. 
And  upon  a  sale  for  cash,  payment  and  delivery  are  concurrent  and 


w-ithout^  contemporaneous  performance  by  the  other:  Fishback  v. 


mutually  dependent  acts,  and  neither  party  is  bound  to  perform 
without  contemporaneous 
v.  Van  Dusen,  33  Minn.  Ill, 

8  See  2  Schouler  on  Personal  Property,  §  292 ;  citing,  Rawson  r. 
Johnson,  1  East,  '203 ;  Jackson  v.  Alloway,  6  Man.  &  G.  942  ;  Bennett's 
Benjamin  on  Sales,  §  677.    And  independently  of  the  question  of 
ownership  of  the  goods,  it  is  a  general  rule  in  all  executory  agree- 
ments for  the  s-Ue  of  chattels,  that  the  seller's  obligation  to  deliver, 
and  the  buyer's  obligation  to  pay  or  render  equivalent,  are  concur- 
rent conditions  in  the  nature  of  conditions  precedent  (see  citations 
next  given) ;  and  that  performance,  or  the  offer  to  perform,  or  a 
readiness  and  willingness  to  do  what  he  was  prevented  from  doii:g, 
is  a  prerequisite  on  tlie  part  of  him  who  would  enforce  the  contract 
against  the  other :  2  Schouler  0:1  Personal  Property,  £  2,3 ;  citing, 
further,  Atkinson  v  -Smith,  14  Mees.  &  W.  6',5  ;  Langdell's  Cases  on 
Contracts  (1st  ed.),  751 ;  Bishop  v.  Shillito,2  Barn.  &  Aid.  32;) ;  Lang- 
dell's Cases  0:1  Sales,  710 ;  Withers  r.  Reynolds,  2  Barn.  <fc  Adol.  882  ; 
Langdell's  Cases  on  Contracts  (1st  ed.),  74  s ;  Warren  v.  Wheeler,  21 
Me.  484  ;  Dana  r.  King,  2  Pick.  155 ;  Yv  illiams  v.  llealey.  3  Derio,  363  ; 
Sutton  v.  Campbell,  2  Thomp.  &  C.  5:i5.    Payment  or  tender  of  price  : 
See  Bussey  v.  Burnett,  9  Mees.  <fc  W.  312  ;  Langdell's  Cases  on  Sales, 
711 ;  Hutchings  v.  Munger,  41  N.  Y.  155  ;  Day  v.  Bassett,  102  Mass.  445  ; 
Phillips  ?-.  Williams,  3:)  Ga.  5^7 ;  2  Schouler  on  Personal  Property, 
f  r^,  making  these  citations,  and  referring,  also,  to  Story  on  Sales, 
|  238. 

9  Sometimes  other  conditions  besides  payment  or  adjustment  of 
the  price  accompany  delivery:  See  Hill  r.  McKenzie,  3  Thomp.  & 
C.  122;  Dresser  Man.  Co.  v.  Waterston,  A  Met,  9  ;  Dyer  v.  Libby,  61 
M".  45;  2  Bchouler  on  Personal  Property,  \  203 ;  referring,  also,  to 
Allen  r.  Delano,  5-5  Me.  113 ;  Buckmaster  v.  Smith.  22  Vt.  113 ;  Holt  v. 
Holt,  58  N.  H.  276. 

10  2  Kent  Com.  497.    And  see  Bennett's  Benjamin  on  Sales,  ?  320, 
n.  tl.    Compare  State  v.  O'Neil,  58  Vt.  1-10  ;  2  Atl.  Rep.  58f>.    Waiver  of 
condition  of  sale  discussed :  Fishback  r.  Van  Dusen,  33  Minn.  Ill,  117. 

11  2  Kent  Com.  497;  as  quoted,  2  Schouler  on  Personal  Property, 
#  2J4  ;  referring,  also,  to  Green  v.  Rowland,  16  Gray,  58. 

12  See  Cobb  v.  Tufts,  2  Tex.  A  pp.  (Civ.  Cas.)  \  152. 

13  Transfer  of  title   in  general :  See  previous  chapter  on  that 
subject. 

14  See  Bishop  v.  Shillito,  2  Barn.  &  Aid.  329,  n.  ;  Langdell's  Cases 
on  Sales,  710;  Godts  v.  Rose,  17  Com.   B.  22;);  Langdell's  Casts  on 
Sales,  970;  Brandt  v.  Bowlby,  2  Barn.  &  Adol.  932  ;  Langdell's  Cases 
on  Sales,  925 ;  Clark  v.  Wells,  45  Vt.  4 ;  12  Am.  Rep.  187  ;  Duncans  r. 
Stone,  45  Vt.  118;  Porter  v.  Pettengill,  12  N.  H.  2i)9;  Paul  v.  Reed,  52 
N.  H  136  ;  Tyler  r.  Freeman,  3  Cush.  201 ;  Langdell's  Cases  on  Sales, 
712  ;  Whitney  r.  Eaton,  15  Gray,  225  ;  Langdell's  Cases  on  Sales.  717  ; 
Forbes  ?>.  Marsh,  15  Conn.  384  ;  Morris  v.  Rexford,  18  N.  Y.  5r,2  ;  Has- 
brouck  v.  Lounsbury,  26  N.  Y.  598;  Henderson  r.  Lauck,21  Pa.  St. 
359;    Thompson  r.  Ray,  46  Ala.  224;  Wabash  Elevator  Co.  v.  First 
Nat.  Bank,  23  Ohio  St.  311  ;  Little  v.  Page,  44  Mo.  412  ;  Ridgeway  r. 
Kennedy,  52  Mo.  24;    Shireman  r.  Jackson,  14  Ind.  459;    FifieJcl  r. 
Elmes,  25  Mich.  48.     Basis  of    foregoing  matter  in    paragraph:  2 
Schouler  on  Personal  Property,  g  29.    And  consult  Story  on  Sales, 


405  CONDITIONAL,  RALES.  §   300 

\  ":-} ;  Oobb  r.  Tuft-*,  1  Tex.  A  pp.  (Civ  Cas.)  ?  152.  II  is  said  to  be  the 
djotri.io  universally  sustained  in  America  that  a  stipulation  reserv- 
ing title  until  payment,  though  possession  is  given  under  an  agree- 
ment to  sell,  is  valid  s\s  between  the  parties,  and  as  against  third 
persons  with  notico  :  1  Corbin's  Benjamin  on  Sales,  425,  citing  the 
oases  by  States. 

I  300.  Condition  sustained  despite  delivery.  —  Delivery 
through  agents.  The  doctrine  that  there  is  no  transfer 
of  title  before  payment,  where  there  is  a  sale  and  de- 
livery on  condition  of  payment,  applies  where  a  servant 
delivers  the  goods  by  mistake  without  receiving  the 
money.1  and  where  there  is  a  consignment  of  a  piano 
0:1  the  previous  distinct  understanding  that  it  shall  re- 
main the  property  of  the  consignor  until  paid  for,  and 
shall  be  further  transferred  only  with  a  like  reservation 
of  the  consignor's  rights.2 

Delivery  under  expectation  of  payment.  So  there  is  no 
necessary  transfer  of  title  where  delivery  is  made  and 
possession  allowed  to  be  retained  by  the  buyer  even  for 
a  considerable  period,  under  the  expectation  of  immedi- 
ate payment.3 

Credit,  notes,  etc.  And  the  rule  requiring  the  per- 
formance of  the  condition  precedent  of  payment,  despite 
delivery,  applies  not  only  to  cash  sales,  but  also  to 
those  upon  a  definite  credit,4  and  vrherever  delivery  is 
made  upon  the  express  or  implied  condition  that  title 
shall  remain  in  the  seller  until  the  giving  of  the  buyer's 
notes  for  the  price,  with  or  without  indorsement,  or  the 
furnishing  by  him  of  certain  securities.5 

Reservation  of  title.  Possession,  given  under  the 
general  condition  that  no  property  in  the  chattel  shall 
pass  until  it  is  fully  paid  for,  is  frequently  held  not  to 
preclude  the  paramount  title  of  the  original  bona  fide 
seller,6  and  a  chattel  may  also  be  delivered  with  such  a 
condition  as  to  title  by  sale,  while  meantime  the  pur- 
chaser 5o  to  use  it  by  way  of  loan  or  hire,1  under  the 
mutual  agreement  of  the  parties.8 


§   301  CONDITIONAL   SALES.  436 

1  See  Bishop  v.  Shillito,  2  Barn.  <fe  Aid.  329  n  ;  Langdell's  Cases 
on  Sales,  710. 

2  See  Cole  v.  Mann,  3  Thomp.  &  C.  380.    Basis  of  paragraph :  2 
Schooler  on  Personal  Property,  §  2+5.    Like  views  where  packages 
of  liquors  Intrusted  to  an  express  company,  to  be  transported  and 
delivered  to  the  consignees  upon  payment  of  the  purchase  price 
and  transportation  charges:  State  r.  O'Neal,  £3  Vt.  140;  2  At!.  Pap. 
533.     Entry  on   books  of  warehouseman  or  other  custodian  :   See 
Godts  ?'.  Rose,  17  Com.  B.  22.) ;  Lanerlell's  Cases  G'\  Sales,  970;  Dixon 
v  Yates,  5  Barn.  &  Adol.  31.°, ;  Boss'  Leading  Cases,  48. 

3  See  Gibson  ?'.  Tobey,  46  X.  Y.  6C7  ;  Tyler  r.  Freeman,  3  Cush. 
2f,l ,   Lungdeli's  Cases  oil  Sales,  712 ;   Sage  v,  Sleutz,  23  Ohio  St.  1 ; 
Johnston  v.  Eichclberger,  13  Fla.  2'.0 ;  Stone  v.  Perry,  CO  Me.  4i ;  2 
Schonlcr  0:1  Personal  Property,  §  2"5 ;  citing,  also,  .Shepherd  r.  Hi.r- 
rison,  Law  R.  4  Q.  B.  IT.,  40.? ;  Law  R.  5  II.  L.  110  ;  Langdcll's  Cases  on 
Sales,  906  ;  and  referring  to  Godts  ?-.  Rose,  17  Com.  B.  ±20  ;  Langdell's 
Cases  on  Sales,  970.    Consult  further,  Bennett's  Benjamin  on  Sales, 
p.  786,  \  677,  n.  /. 

4  See  Little  v.  Page,  44  Mo.  412  ;  Whitney  r.  Eaton,  15  Gray,  225  ; 
Langdell's  Cases  on  Sales,  717;  Hasbrouck  ?'.  Lounsbury,  26  N.  Y 
5'jX  ;  Fifield  v.  Elmer,  25  Mich.  48  ;  Clark  v.  Wells,  45  Vt.  4  ;  12  Am. 
Hep.  187. 

5  See  Dresser  Manuf.  Co.  v.  Waterston,  3  Met.  9 ;  Hirschhorn  r. 
Cannej',  98  Mass.  149  ;  Stone  r.  Perry,  60  Me.  4S.    Basis  of  paragraph  : 
2  Schooler  on  Personal  Property,  \  206.    And  consult  Bennett's  Len- 
jamin  on  Sales,  p.  334,  §  320,  n.  d. 

6  See  Sage  v.  Sleutz,  2T  Ohio  St.  1  ;  Deshon  v.  Bigelow,  8  Gray,  150 ; 
Cole  v.  Mann,  3  Thomp.  &  C.  380 ;  Powell  r.  Preston,  3  Thomp.  &  C. 
644. 

7  SeeEnlow  r.  Klein,  73  Pa.  St.  488,490:  Chamberlain  r.  Smith, 
44  Pa.  St.  431,  4S3,  4G4.    And  consult  Hunt  r.  Wyman.  100  Mass.  l.;8, 200. 

8  See  Forbes  r.  Marsh,  15  Conn.  3«4  ;  Shireman  ?-.  Jackson,  14  I  ml. 
459.    Basis  of  paragraph :  2  Schouler  on  Personal  Property,  £  298  ; 
\  20,  on  PRIVILEGE  OF  PURCHASE. 

\  301.  Rig-Jits  of  creditors  and  purchasers.  —  Attaching 
creditors.  The  condition  precedent  or  concurrent  cf 
payment  as  a  prerequisite  to  transfer  of  title,  imposed 
by  the  seller  upon  delivery,  will  generally  take  effect1 
in  every  bona  fide  transaction,2  against  not  only  the 
buyer,  but  all  who  may  claim  under  him,  including  his 
attaching  creditors,3  even  though  the  price  may  be 
tendered4  on  their  behalf.5 

Bona  fide  purchasers.  And  it  may  now  be  regarded 
as  the  prevalent  doctrine  in  this  country,  aside  from 
any  exceptions  arising  out  of  negotiable  or  quasi-nego- 
tiable instruments,6  that  a  sale  of  personal  property 
made  by  one  to  whom  the  chattel  was  delivered  by  tho 


437  CONDITIONAL   SALES.  \    33J 

original  seller  on  condition  that  the  property  should 
not  pass  until  the  chattel  was  paid  for,7  confers  no  better 
title  upon  a  b-mafide  purchaser  without  notice  from  the 
original  buyer,8  than  was  possessed  by  the  buyer  him- 
solf,9  or  by  his  attaching  creditors,  or  a  purchaser  with 
actual  notice  of  the  condition  ;10  and  that  as  against  all 
of  these  the  original  seller  may  with  due  diligence 
follow  up  his  rights,  and  reclaim  the  chattel  as  his 
own,11  for  non-fulfillment  of  the  condition  bona  fide 
annexed  to  the  delivery,12  in  a  transaction  free  from, 
fraud  on  his  part.13 

Special  views.  But  there  are  decisions  in  Illinois, 
Kentucky,  and  some  other  States  under  which  the  con- 
dition reserving  title  after  delivery  appears  to  be  sus- 
tained between  the  parties,  but  not  as  against  bona  fide 
purchasers  or  attaching  creditors  without  notice.14  And. 
in  Pennsjrlvama,15  and  in  Alabama,  a  distinction  is  mado 
between  possession  under  a  hiring  with  the  privilege  of 
purchasing,  which  is  valid  as  to  creditors  and  pur- 
chasers, and  possession  under  a  conditional  contract  of 
sale,  which  is  void  as  to  such  third  parties.16 

Registration  acts.  Furthermore,  in  a  number  of  the 
States,  statutes  have  been  enacted  to  the  effect  that  con- 
tracts for  conditional  sales,  where  possession  is  de- 
livered and  the  property  reserved  to  the  seller  to  secure 
the  price,  shall  be  void  as  to  the  vendee's  creditors  and 
vendees  without  notice,  unless  such  contracts  are  in 
writing,  and  filed  or  recorded  in  the  office  of  some 
public  officer,  usually  the  clerk  of  the  town  or  county.17 

1  Otherwise  in  Pennsylvania:  See  Brunswick  v.  Hoover,  1)5  Pa. 
St.  50S ;  49  Am.  Rep.  674. 

2  Otherwise  where  transfer  is  a  dishonest  device  regarded  as 
fraudulent :  See  Taylor  v.  Pope,  5  Cold.  416. 

3  See  Stone  v,  Perrv,  fiO  Mo.  43;  Duncans  v.  Stone,  45  Vt.  11*: 
Paul  v.  Rood,  52  N.  H.  !::."• ;  Holt » .  Holt,  53  N.  H.  276  ;  Coggill  v.  Hart- 
ford etc.  R.  R.  Co.  3  Gray,  541 ;  Lanjrdell's  Cases  0:1  Sales,  71  :> ;  Forbes 
i»  Marsh,  15  Conn.  3-54  ;  I>wis  ?'.  McCabe,  40  Conn.  140 ;  44  Am.  Rep 
217  ;  Ballard  v.  Burgett,  40  N.  Y.  314  ;  Langdcll's  Cases  on  Sales,  730  ; 


f   301  CONDITIONAL   SALES.  438 

Stevens  v.  Brennan,  79  N.  Y.  254;  Cole  v.  Berry,  42  N.  J.  L.  308 ;  36 
Am.  Rep.  511 ;  Sage  r.  Sleutz,  23  Ohio  St.  1  ;  Ridgeway  v.  Kennedy, 
52  Mo.  24 ;  Smith  v.  Lozo,  42  Mich,  fi ;  Thorpe  v.  Fowler,  57  Iowa,  541 ; 
Aultman  v.  Mallony,  5  Neb.  178  ;  25  Am.  Rep.  478. 

4  Sometimes  otherwise  by  legislation  •  See  Duncans  v.  Stone,  45 
Vt.  118. 

5  See  Sage  v.  Sleutz.  23  Ohio  St.  1 ;  Buckmaster  r.  Smith,  22  Vt. 
203.    Basis  of  paragraph  :  2  Schouler  on  Personal  Property,  \  299. 

6  See  \  r02,  on  WAIVER,  ESTOPPEL,  ETC. 

7  See  Cobb  v.  Tufts,  2  Tex.  App.  (Civ.  Cas.)  f  182. 

8  Who  is  such  bonn,  fl(*e  pur^hnser  :  See  Downs  v.  Belden,  46  Vt. 
674  ;  Stevens  v  Brennan,  7J  N.  Y.  201. 

9  Sec  ?  134,  on  SALE  WITH  CONDITION  PRECEDENT. 

10  See  citations  in  next  note.    For  any  third  party  who  knows 
that  the  original  purchaser  had  come  into  possession  of  the  goods  is 
bound  to  inquire  whether  the  title  acquired  was  that  of  buyer,  bor- 
rower, hirer,  etc.:  See  Forbes  v.  Marsh,  15  Conn.  384.    But  compare 
Leighton  v.  Stevens,  19  Me.  154. 

11  In  snles  where  price  payable  in  instalment:  S^e  McCombs  r. 
Guild,  9  Lea,  81 ;  Summer  r/Cottoy,  71  Mo.  121.    But  compare  Car- 
penter v.  Scott,  13  R.  1.  477. 

12  Conditions  not  waived   by  seller  merely  taking   purchaser's 
price  notes.  Heinbockle  r.  Zugbaum,  5  Mont.  344  ;  51  Am.  Rep.  50. 

13  See  Coggill  r.  Hartford  etc.  R.  R.  Co.  3  Gray,  545 ;   Langdell's 
Cases  on  Sales,  713 ;  Deshon  v.  Bigelow,  8  Gray,  159 ;  Hirschorn  r. 
Cannes*,  93  Mass.  149 ;  Hotchkiss  r.  Hunt,  49  Me.  213 ;  Bigelow  r. 
3Iu:itlev,  8  Vt.  151 ;  Clark  v.  Wells,  45  Vt.  4  ;  12  Am.  Rep.  137;  Kim- 
hall  v.  Jackman,  42  N.  H.  242  ;  King  v.  Bates,  57  N.  H.  446  ;  Hart  r. 
Crpenter,  24  Conn.  427;  Brown  r.  Fitch,  43  Conn.  312 ;  Ballard  v. 
Bu-gett,  4')  N.  Y.  31 1 ;  Langdell's  Cases  on  Sales,  700  ;  Dows  v.  Kidder, 
81  N.  Y.  121 ;  Parker  r.  Baxter,  86  N.  Y.  5^6  ;  Cole  v.  Berry,  42  N.  J.  L. 
303  ;  33  Am.  R^p.  5!1 ;  Price  v.  Jones,  3  Head,  81 ;  Little  r.  Page,  44 
Mo.  412;  Southwestern  Freight  Co.  v.  Plant,  45  Mo.  517;  Ridgeway  v. 
Kennedy,  52  Mo.  24;  Wangler  v.  Franklin,  70  Mo.  65'J ;  Fifield  v. 
Elmer  25 Mich  43;  Shiremrm  r.  Jackson,  14  Ind.459;  Baker  r.  Hull, 
1")  Iowa,  277.     Centra,  see  Michigan  Central  R.  R.  Co.  t\  Phillips.  60 
111.   CO;  Rose  r.  Story,  1  Pa.  St.  1DO;  41  Am.  Dec.  121;  Ilussey  r. 
Thornton,  4  Mass.  405 ;  3  Am.  Dec.  224  ;  Wait  r.  Green,  36  N.  Y.  5">fi  ; 
Lariflfdell'S  Cases  on  Sales,  7-3  ;  Leighton  r.  Stovers,  13  Me.  154.    Busis 
of  paragraph  :  2  Schouler  on  Personal  Property,  I  300  ;  Heinboeke  r. 
Z:rybaum,  5  Mont.  344  ;  51  Am.  Rep.  59.    And  s^e  Story  on  Sales,  ?  31°. ; 
Sargent  r.  Metcalf,  5  Gray,  306  ;  66  Am.  Dec.  .°63 ;  Burbank  ?•.  Crooker, 
7  Gray,  153  ;  66  Am.  Dec.  470,  n.  472 ;  Bailey  r.  Harris,  8  Iowa,  331  ;  74 
A:n.  Dec.  312,  n.  313.    Doctrines  in  the  various  States  discussed:  1 
Corbin's  Benjamin  on  Sales,  ^4^7-461. ;  Bennett's  Benjamin  on  Sales, 
?  370,  n.  d  ;  Harkness  t».  Russell,  118  TT.  S.  663,  670-631.    And  sre  Marvin 
Safe  Co.  v.  Norton,  43  N.  J.  L.  412  ;  57  Am.  Rep.  5^>6,  567.    Doctrine  in 
Now  York  discussed :  24  Alb.  L.  J.  264.    Considering  recent  case  of 
Comer  v.  Cunningham,  77  N.  Y.  3PI  ;  33  Am.  Rep.  626  ;  and  conflicting 
cases  of  Wait  r.  Green,  36  N.  Y.  553;  Langdell's  Cases  on  Sales,  728; 
and  Ballard  r.  Bingett,  40  N.  Y.  3U  ;  Langdell's  Cases  on  Sales,  730  ; 
rlso  quoting,  Austin  v.  Dye,  46  N.  Y.  500  ;  and  Smith  v.  Lynes,  5  N.  Y. 
41 ;  Langdell's  Cases  on  Sales,  7'24. 

14  See  March  v.  Wright,  46  111.  487;  Vaughn  v.  Hopson,  10  Bush, 
3o7  ;  2  Schouler  on  Personal  Property,  g  300,  p.  283,  n. 

15  Se^  f-Tlt  statement  in  Marvin  Safe  Co.  v.  Norton,  43  N.  J.  L.  412  ; 
57  Am.  Rep.  560-563. 


439  CONDITIONAL  SALES.  \   392 

16  So^  Kranso  v.  Commonw.  93  Pa.  St.  418,  421 ;  Dando  v.  Foulda, 
105  Pa.  St.  74,  76 ;  Edward's  Appeal,  105  Pa.  St.  103  ;  Forrest  v.  Nelson, 
irH  Pa.  St.  481,  488;  McCall  v.  Preseott,  64  Ala.  254,  258.    And  consult 
Haak  v.  Lindeman,  64  Pa.  St.  499  501  ;  37  Am.  Rep.  601 ;  Stadtfield  v. 
Huntsman,  92  Pa.  '37;  37  Am.  Rep.  661,  n.  6">4  ;  Brunswick  etc.  Co.  v. 
H  >over,  95  Pa.  St.  508  ;  49  Am.  Rep.  674  ;  \\  19  and  27,  on  DELIVERY 
TINDER  CONDITIONAL,  SALE,  and  SALE  OR  LEASE  ;  Sumner  v.  Woods. 
fi-I  Via.  59 ;  42  Am.  Rep.  104  ;  Dudley  v.  Abner,  52  Ala.  572,  579.    Com- 
pi-»  Leigh  7'.  Mobile  rt.c.  R.  R.  53  Ala.  165, 177 ;  Cole  v.  Berry,  42  N.  J. 
I,  303  ;  46  Am.  Rep.  5il,  517. 

17  See  Roynton  i\  Libby,  62  Me.  253  ;  Bugbee  r.  Stevens,  53  Vt.  3S9 ; 
White  >nib  v.  Woodworth',54  Vr,  544  ;  MoClelland  v.  Nichols,  24  Mi"n. 
17fi;  Wiliiims  v.  Porter,  41  Wis.  422;  Kirnball  v.  Post,  44  Wis.  471  ; 
Bnnn  r.  Valley  Lumber  Co.  51  Wis.  376;  Singer  Co.  v.  Holcomb,  40 
Iowa,  33 ;  Mvor  r.  Car  Co.  102  U.  S.  1, 10  ;  Hewey  ?;.  R.  I.  Locomotive 
Works,  93  U.  S.  6R4 ;  Horyford  v.  Davis,  102  U.  S.  235.    Basis  of  para- 
graph :   1  Corbin's  Benjamin  on  Sales,  §  4fil ;  §  22,  on  SALE  OR  LEASE. 
Attaching  creditors  with  actual  notice  not  affected  by  statute  :   Dyer 
?'.  Thorstad,  29  N.  W.  Rep.  (Minn.)  345,  discussing  construction  of 
such  enactments. 

$  302.  Waiver,  estoppel,  etc.  —  Effect  of  waiver ,  etc. 
Where  goods  are  sold  on  condition  of  paying  or  secur- 
ing the  price,  such  condition  precedent  is  subject  to  the 
usual  exception  that  acts  and  conduct  on  the  seller's 
part,  from  which  an  express  or  implied  waiver  of  the 
condition  may  be  inferred,1  or  which  go  to  render  due 
performance  by  the  buyer  impossible,2  will  excuse  the 
b'lyer  from  a  strict  compliance  with  the  condition  pre- 
cedent,3 besides  debarring  the  seller  of  his  right  to  re- 
claim the  goods4  as  his  own.5  Whether  there  has  been 
a  waiver  is  a  question  of  fact,  which  may  be  proved  by 
various  species  of  evidence,  by  declarations,  by  acts,  or 
by  forbearance  to  act.6 

Existence  of  waiver.  And  the  important  question  in 
determining  whether  there  has  been  a  waiver  of  a  con- 
dition of  sale  by  delivery,  is  whether  the  vendor  has 
manifested  by  his  language  or  conduct,  any  intention 
or  willingness  to  waive  the  condition  and  make  the 
dolivery  unconditional  and  the  sale  absolute,  without 
having  received  payment  or  the  performance  of  the 
conditions  of  sale.7  This  must  depend  on  the  intent  of 
the  parties  at  the  time,  to  be  ascertained  from  their 


$    302  CONDITIONAL   SALES.  440 

conduct  and  language,  and  not  from  the  mere  fact  of 
delivery  alone.8 

Estoppel.  The  original  seller  would,  under  suitable 
circumstances,  be  estopped  by  his  own  representations, 
or  acts  and  conduct,  from  claiming  the  goods  as  his  own 
against  a  third  party  who  had  purchased  them  in  good 
faith  without  knowledge  of  the  failure  to  fulfill  a  con- 
dition accompanying  delivery.9  And  there  are  decisions 
to  the  effect  that  a  seller  who  not  only  gives  up  posses- 
sion of  the  goods,  but  also  turns  over  to  the  buyer  a 
quasi -negotiable  instrument  in  the  nature  of  a  bill  of 
lading,10  so  as  to  vest  the  latter  with  the  full  indicia  of 
ownership,11  cannot  afterwards  recover  the  goods  repre- 
sented by  the  instrument,  under  a  claim  that  the  goods 
were  conditionally  sold,  so  as  to  defeat  the  title  of  one 
who  has  btna  fide  purchased  or  advanced  on  the  secur- 
ity of  the  instrument.12 

1  See  Fishback  \\  Van  Dusen,  33  Minn.  Ill,  117. 

2  Element  of  impossibility  by  death :  See  McGraw  v.  Gilmes,  83 
N.  C.  152. 

3  Condition  precedent:  See  $  234,  on  COXDITIOXS  ix  GENERAL. 

4  See  §  30o,  on  RESUMPTION  OK  POSSESSION. 

5  2  Schouler  on  Personal  Property,  §  304.    But  as  the  title  to  the 
goods  fully  vests  in  the  buyer,  the  unpaid  seller's  remedies  becomes, 
aside  from  his  lien  for  the  pri^p,  those  of  an  ordinary  creditor,  and 
subject  to  the  f-imiliar    principle  that  those  with  legal  demands 
against  a  debtor  who  first  attach  will  take  the  precedence :  2  Schouler 
on  Personal  Property,  ?  304. 

6  Fishback  v.  Van  Dusen,  33  Minn.  Ill,  lia 

7  Fishback  v.  Van  Dusen,  33  Minn.  Ill,  117. 

8  Fishback  r.  Van  Dusen,  33  Minn.  Ill,  118.    However  the  waiver 
is  proved,  the  question  is  whether  the  vendor  has  voluntarily  and 
unconditionally  delivered  the  goods  without  intending  to  claim  the 
benefit  of  the  condition:  Fishback  v.  Van   Dusen,  33  Minn.  111,118; 
citing,  Fuller  ?>.  Bean,  32  N.  H.  2  *)-303  ;  Smith  r.  Dennie,  (J  Pick.  2«2  ; 
17  Am.  Doc.  360;  Farlow  v.  Ellis,  15  Gray,  229 ;  LangdelPs  Cases  on 
Sales,  720 ;  llummett  r.  Linneman,  48  N.  Y.  399. 

9  2  Schouler  on  Personal  Property,  §  305.    But  compare  Zucht- 
mann  r.  Roberts.  100  Mass.  5'> ;  1"5  Am.  Rep.  663.    And  see  Barnard  v. 
Campbell,  £>  N.  Y.  456. 

10  See  I  211,  0:1  SIGNIFICATION  or-  TEUM  "  DOCUMENTS  OF  TITLE." 

11  Ostensible  or  apparent  ownership  or  authority,  {%  175,  210. 


441  CONDITIONAL  SALES.  \   303 

12  See  Mich.  Cent.  R.  R.  Co.  ?'.  Phillips,  00  111.  100  ;  Barnard  v. 
Campbell,  55  N.  Y.  450  ;  Western  Transp.  Co.  v.  Marshall,  4  Abb.  N.  Y. 
A  pp.  575  ;  liawls  v.  Deshler,  4  Abb.  N.  Y.  A  pp.  12.  But  see  Brandt  v. 
Fof!ht,  1  Abb.  N.  Y.  App.  185  ;  Dows  v.  Kidder,  84  N.  Y.  121 ;  Parker 
?'.  Baxter,  86  N.  Y.  5S(> ;  Hirschorn  v,  Caiiney,  tit  Mass.  149.  Basis  of 
paragraph:  2  Schouler  on  Personal  Property,  \  ttOI.  In  some  States 
this  exception  would  be  extended  to  a  sub-sale  of  stock  with  a  power 
of  attorney  indorsed  thereon  :  Cherry  v.  Frost,  7  Lea,  1. 

§  303.  Waiver  by  delivery.  —  If  unqualified  and  un- 
conditional. The  doctrine  is  said  to  be  uniform  and 
well  established l  that  if  the  vendor  unqualifiedly  and 
unconditionally  delivers  the  goods  to  the  vendee  with- 
out insisting  on  performance  of  conditions,  intending 
to  rely  solely  upon  the  personal  responsibility  of  the 
vendee,  the  title  passes  to  the  latter,2  and  that  the 
vendor  cannot  afterwards  reclaim  the  property,  even  if 
the  condition  is  never  performed,  but  his  only  remedy 
is  upon  the  contract  for  the  purchase  money.3 

Presumption  of.  And  the  weight  of  authority  seems 
to  be4  that  a  delivery,  apparently  unrestricted  and  un- 
conditional of  goods  sold  for  cash,  is  presumptive  evi- 
dence of  the  waiver  of  the  condition  that  payment 
should  be  made  on  delivery  in  order  to  vest  the  title  in 
the  purchaser.5 

Inference  of  conditional  delivery.  But  a  sale  does  not 
ipso  facto  become  absolute  when  a  delivery  is  made, 
unaccompanied  by  any  express  declaration  that  is  con- 
ditional,6 and  it  is  sufficient  if  the  intent  of  the  parties 
that  the  delivery  is  conditional  can  bo  inferred  from 
their  acts  and  the  circumstances  of  the  case.7 

Slight  priority  of  delivery.  Nor  is  there  a  waiver  of 
the  condition  of  immediate  payment  where  the  delivery 
is  intended  to  be  substantially  simultaneous  with  pay- 
ment, but  happens  to  precede  it  by  a  short  period.8 

1  According  to  Fishback  v.  Van  Dusen,  33  Minn.  Ill,  118. 

2  See  citations  in  next  note. 

3  See  2  Kent  Com.  406;  Carleton  v.  Sumner,  4  Pick.  516  ;  Dresser 
Muauf.  Co.  v.  Wuterston,  3  Met.  y;  Furlow  v.  Ellis,  15  Gray,  22'J  ; 


I   304  CONDITION  AT.  SALES.  442 

Langdell's  Cases  on  Sales,  720 ;  Goodwin  r.  Boston  &  L.  K.  Co.  Ill 
Mass.  487;  Scudder  v.  Bradbury,  106  Mass.  422  ;  Huskins  v.  Warren, 
Ho  Mass.  514  ;  Freeman  v.  Xiohols,  116  Mass.  30J  ;  Bowen  v.  Burk,  13 
Pa.  St.  1^6;  Mixer  v.  Cook,  31  Me.  40. 

4  According  to  Flsbback  v.  Van  Dusen.  33  Minn.  Ill,  118. 

5  See  Scudder  r.  Bradbury,  106  Mass.  422 ;  Upton  v.  Sturbridge 
Cotton  Mills,  111  Mass.  4-iG  ;  Hammett  r.  Linneman,  48  N.  Y.  3  U  ; 
Smith  ?\  Lynes,  5  N.  Y.  41  ;  Langdell's  Cases  on  Sales,  734;  Farlow  v. 
Ellis,  15  Gray,  229;  Langdell's  Cases  on  Sales,  720. 

6  See  2  Kent  Com.  4^7;  T.even  v.  Smith,  1  Denio,  571  ;   Smith  v. 
Dannie,  G  Pick.  272  ;  17  Am.  Dt-c.  3G8. 

7  Fishb:«ck  ?-.  Van  Dusen,  3°»  Minn.  111, 116.    Discussion  of  waiver 
by  delivery:   Bennett's  Benjamin  on  Sales,  pp.  335,  33C,  \  320,  n.  rf. 
And  see  Story  on  Sales,  §  313. 

8  Commonw.  ?>.  Devlin,  6  N.  E.  Rep.  (Mass.)  04:  distinguishing 
Hnskins  r.  Warren,  115  Mass.  51 4  ;  and  referring  to  Bussey  v.  Barnett, 
9  Mees.  &  W.  312  ;  Langdell's  Cases  on  Sales,  711. 

%  301.  Seller's  delay,  etc.  —  Requirement  of  reason- 
able diligence.  In  order  that  the  seller  may  be  able  to 
show  that  there  was  no  waiver  of  the  condition  of  pay- 
ment on  his  part,  he  must  have  pursued  his  right  with 
reasonable  diligence,  according  to  the  circumstances,1 
by  following  up  the  buyer  at  once  and  without  inter- 
mission, if  the  condition  was  cash  payment  or  immediate 
adjustment  of  the  price  on  delivery,2  and  not  abating 
his  vigilance  after  the  maturity  of  the  buyer's  obliga- 
tion, if  the  allowance  of  time  was  a  part  o*  the  condition.3 

Insufficiency  of  mere  negligence.  But  waiver  is  a 
voluntary  relinquishment  of  some  right  which,  but  for 
such  waiver,  the  party  would  have  enjoyed;4  so  that 
voluntar3r  choice  is  of  the  essence  of  such  waiver,  and 
mere  negligence  is  insufficient,  though  from  such  negli- 
gence, unexplained,  the  intention  of  waiver  may  be 
inferred.5 

Justification  of  delay.  And  among  elements  which 
may  justify  delay,  or  be  considered  in  determining 
whether  it  amounts  to  waiver  of  the  condition,  are  a 
trade  usage,  allowing  an  extended  period  for  payment ; 6 
or  the  circumstance  that  the  parties  live  far  apart,  or 
transact  business  through  third  parties  who  have  to 


CONDITIONAL  SALES.  g   305 

notify  the  principals;7  or  the  character  of  the  chattel, 
as  easil3r  taken  back  or  troublesome  to  remove.8 

1  See  citations  in  succeeding  notes. 

2  Delay  in  calling  for  buyer's  note  :  Smith  v.  Dennis,  6  Pick.  262. 

3  2  Schouler  on    Personal   Property,  \  304,  whence  paragraph 
derived.     Allowing  buyer  to  retain  possession  after  time  fixed  for 
p.iying  price  :    Hutchings  v.  Munger,  41  N.  Y.  155.    And  see  Mixer  v. 
Cook,  31  Me.  340  ;  Bowen  v.  Burk.  13  Pa.  St.  146  ;  Scudder  v.  Bradbury, 
10G  Mass.  427  ;  Goldsmith  v.  Bryant,  26  Wis.  34. 

4  Fishback  v.  Van  Dusen,  33  Minn.  Ill,  117. 

5  Fishback  r.  Van  Dusen,  33  Minn.  111,117.    And  see  Farlow  v. 
Ellis,  15  Gray,  22J  ;  Langdeil's  Cases  on  Sales,  720. 

6  See  Stone  r.  Perry,  60  Me.  48.    But  compare  Scudder  v.  Brad- 
bury, 106  Mass.  422. 

7  See  Stone  v.  Perry,  60  Me.  48  ;  Whitney  v.  Eaton,  15  Gray,  225  ; 
Langdell's  Cases  on  Sales,  717  ;  Hirschorn  v.  Canney,  98  Mass.  149. 

8  Goldsmith  v.  Bryant,  26  Wis.  34.    Or  the  action  of  the  buyer  in 
obstructing  the  seller  in  the  effort  to  procure  payment:  Hill  ?'.  Mc- 
Kenzie,  3  Thomp.  <fe  C.  122.    And  see  Tyler  v.  Freeman,  3  Cush.  261  ; 
Langdell's  Cases  on  Sales,  712.    Basis  of  paragraph:  2  Schouler  on 
Personal  Property,  §  304. 

§  305.  Resumption  of  possession.  —  Notice,  etc.,  as  pre- 
requisite. An  actual  delivery  of  possession  to  the  buyer 
by  a  seller,  stipulating  to  retain  the  right  of  property, 
may  be  so  far  incompatible  with  the  further  retention 
of  the  right  of  possession  as  to  render  it  incumbent 
upon  the  seller  to  give  notice,  or  to  make  some  explicit 
declaration,  before  he  can  retake  the  goods.1  But  on 
putting  the  other  party  at  default,  a  seller  may  resume 
possession  of  chattels  conditionally  sold.2 

On  refusal  of  payment.  Where  a  purchaser  refuses 
payment  upon  getting  possession  of  goods  delivered  to 
him  in  pursuance  of  an  understanding,  express  or  im- 
plied, that  payment  and  delivery  should  be  simulta- 
neous, the  seller  may  reclaim  the  goods  as  his  own,3  if 
lie  is  reasonably  prompt  in  asserting  his  rights  in  the 
premises.4 

1  Giddoy  v.  Altman.  ?7  Mich.  206;  so  cited,  2  Schouler  on  Per- 
sonal  Property.  \  2J8  ;  referring,  however,  to  Powell  v.  Preston,  3 
Thomp.  &  C.  644. 

2  2  Schouler  on  Personal  Property,  §  298,  whence  next  paragraph 
also  derived.    If  the  seller  reserves  title,  and  it  is  agreed  that  on  de- 


$   306  CONDITIONAL  SALES.  444 

fault  he  may  enter  the  buyer's  premises  and  retake  the  property, 
this  license  is  irrevocable,  and  the  seller  will  not  be  liable  in  trespass 
for  such  entry  :  1  Corbin's  Benjamin  on  Sales,  \  428  ;  relying  upon 
Walsh  ?'.  Taylor,  30  Md.  5J2  ;  and  referring,  also,  to  McClelland  v. 
Nichols,  24  Minn.  176. 

3  See  Fishback  r.  Van  Dusen,  33  Minn.  Ill,  116  ;  Bennett's  Benja- 
min on  Sales,  p.  786,  \  677,  n./;  Story  on  Sales,  p.  344,  \  313. 

4  See  Atkinson  r.  Smith,  4  Mees.  &  W.  695  ;  Langdell's  Cases  on 
Contracts  Hst  ed.),  751  ;  Withers  v.  Reynolds,  2  Barn.  &  Adol.  882; 
Langdell's  Cas^s  on  Contracts  (1st  ed.).  748  ;  Henderson  ?>.  Lauck,  '21 
Pa.  St.  3r>»;   Adams  r.  O'Connor,  100  Mass.  515;   Leven  v.  Smith,  1 
DP nio,  571  ;  Paul  7-.  Reed,  52  N.  H.  136  ;  Dashon  t>.  Bigelow,  8  Gray, 
15;) ;  Ridgeway  v.  Kennedy,  52  Mo.  24. 

$  306.  Sales  on  instalment  plan.  —  In  general.  If  the 
contract  of  the  parties  bo  such  as  to  indicate  that  the 
seller  shall  retain  his  right  of  ownership  after  delivery, 
notwithstanding  a  partial  payment  or  partial  adjust- 
ment of  the  price,1  as  in  the  case  where  chattels  are  sold 
payable  in  instalments,2  under  a  plan  which  prevails  in 
various  parts  of  this  country  with  regard  to  pianos, 
sewing-machines,  etc.,3  the  condition  of  payment4  is 
enforcible  to  the  extent  of  making  full  adjustment  a 
prerequisite  to  the  acquirement  of  title  by  the  buyer.5 

Discrimination  from  similar  transactions.  And  it  has 
been  suggested  that  contracts  of  this  uncertain  descrip- 
tion should  be  reduced  to  writing,  so  as  to  show  clearly 
the  respective  rights  of  the  parties,  and  enable  the  courts 
to  discriminate  between  a  sale  conditional  upon  pay- 
ment by  instalments,  and  that  which  is  in  truth  a  mort- 
gage transaction,6  or  a  bailment,7  such  as  a  lease,8  giving 
the  privilege  of  purchase.9 

Special  provisions.  The  construction  of  such  con- 
tracts according  to  their  tenor,  gives  just  scope  to  the 
mutual  undertaking  of  the  parties  if  the  agreement  con- 
tains an  option  to  buy  or  hire  in  favor  of  the  one  party,10 
or  other  special  conditions,11  to  be  observed  by  the 
other.12 

Forfeiture  of  partial  payments.  On  a  sale  reserving 
title  till  the  price  is  paid,  many  of  the  cases  hold  that 


445  CONDITIONAL,   SALES.  \    303 

partial  payments  are  forfeited  on  default  of  the  residue  ; 13 
but  in  courts  possessing  equity  powers,  the  modern 
tendency  is  to  allow  the  seller  who  rescinds  a  contract 
for  default  after  receiving  a  part  of  the  price,  to  retain 
only  so  much  as  will  compensate  him  ;u  and  if  the  seller 
who  retains  title  to  property  delivered  under  a  con- 
ditional sale,  permits  the  buyer  to  retain  possession,  and 
receives  payments  after  the  default,  this  operates  as  a 
waiver  of  the  forfeiture,15  and  enables  the  buyer  to  be- 
come the  owner  of  the  property  by  making  tender  of 
the  residue  of  the  price.16 

1  See  citations  in  succeeding  notes.    Sales  upon  partial  delivery 
or  partial  payments  discussed:  2  Schouler  on  Personal  Property. 

2  ;>os. 

2  Instalment  in  general :  1  Bouvier  Law  Diet.  (14th  ed.)  725.    Sales 
upon  instalments  discussed:  8  South.  L.  Rev.  N.  S.  228. 

3  Sr>e  following  illustrative  cases :  Hine  v.  Roberts,  48  Conn.  208  ; 
40  Am.  Rep.  170  ;  Singer  Manuf.  Co.  v.  Cole,  4  Lea,  439 ;  40  Am.  Rep. 
21  ;  Knittel  v.  Cushing,  57  Tex.  3."4 ;  44  Am.  Rep.  508  ;  Lucas  r.  Camp- 
bell, S3  111.  447;  31  Am.  Rep.  8!  ;  Sumner  v.  Cotley,  71  Mo.  121 ;  Singer 
Manuf.  Co.  v.  Graham,  8  Or.  17  ;  34  Am.  Rep.  572 ;  Hervey  v.  Locomo- 
tive Works,  93  U.  S.  664. 

4  Payment  as  condition  precedent:  See  preceding  section  on  that 
subject. 

5  1  S^houler  on  Personal  Property,  \  297 ;  citing,  Sage  v.  Sleutz, 
23  Ohio  St.  1  ;  Button  ?'.  Campbell,  2  Thomp.  &  C.  595 ;  Cole  v.  Mtnn, 
3Tli;j:np.  ct  (.'.  aso  ;  Preston  v.  Whitney,  23  Mich.  260;  Giddey  v.  Alt- 
man,  27  Mich.  206  ;  Goldsmith  v.  Bryant,  26  Wis.  34. 

6  Sale  or  mortgage:  See  Rockwell  v.  Humphreys,  57  Wis.  410, 
414;  Cook  v.  Lion  Fire  Ins.  Co.  7  Pacif.  Rep.  (Cai.)  784;  Russell  v. 
Harkness,  7  Pacif.  Rep.  (Utah)  865:  Glass  ?\  Doane,  15  111.  App.  CI ; 
Turner  v.  Kerr,  44  Mo.  4°1,  431 ;  Wilmerding  v.  Mitchell,  42  N.  J.  L. 
476,  47J ;  g  24.  discussing  this  subject. 

7  2  Sohoulor  on  Personal  Property,  §  297  ;  referring  to  Rowan  v. 
Union  Arms  Co.  36  Vt.  124;  Singer  Manuf.  Co.  v.  Cole,  4  Lea,  4:'.J;  40 
Am.  R,  p.  21. 

8  Sale  or  lease :  See  §  22. 

9  S?e  Sumner  v.  Cotley,  71  Mo.  121.    Conditional  sale  on  instal- 
ment plan,  under  guise  of  renting,  hiring,  letting,  et2.:  See  Greer  ?». 
Church,  13  Bush,  4:!3  ;  Knittel  ?'.  dishing,  57  Tex.  354  ;  44  Am.  Rep. 
598,  600  ;  Singer  Manuf.  Co.  v.  Cole,  4  Lea,  439;  40  Am.  Rep.  21  ;  Lucas 
v.  Campbell,  83  111.  447,449;  31  Am.  Rep.  81  ;  Prioe  ?'.  McCallister,  3 
Grant  Cas.  24S ;  Singer  Manuf.  Co.  11.  Graham,  8  Or.  17  ;  34  Am.  Rep. 
572;  Hlno  v.  Roberts,  43  Conn.  268,269;  40  Ain.  Rep.  170;  Hervey  v. 
Locomotive  Works,  93  U.  S.  664. 

10  See  citations  in  last  note. 

11  Resumption  of  possession,  etc.:  See  Fleck  v.  Warner,  25  Kan. 
492;   Moagher  i».   Hollenberg,  9  Lea,  392;   Wheeler   Manuf.  Co.  v. 
Teetzlaff,  53  Wis.  211. 

NEWMAKK  SALES.  — 38. 


1  337  CONDITIONAL,   SALES.  446 

12  2  Schouler  on  Personal  Property,  I  297. 

13  See  Angi«?r  r.  Tannto-i  Paper  Co.  1  Gray,  R21  ;  Knox  ?•.  Perkins, 
15  Gray.  52:)  ;  Colcord  r.  McDonald,  128  Mass.  470  ;  Brown  r.  Haynes, 
52  Me.  578  ;  Everett  ?•.  Hall,  67  Me.  407  ;  Haviland  ?•.  Johnson,  7  Daly, 

2  )7  ;  Duke  r.  Shackelford,  r»6  Miss.  552  ;  Howe  Machine  Co.  r.  Willie, 
So  ill.  :c>3;  Latham  ?\  Sumner,  89  111.  2H3  ;  31  Am.   Rop.  7'» :  Singer 
Minnf.  Co.  ?•.  Treadway,  4  111.  App.  57;  Fleck  v.  Warner, 25  Kan.  492  ; 
Whelun  v.  Couch,  26  Grant  (Out.)  74. 

14  S^e  Preston  v.  Whitney,  21  Mi<?h.  260,  267  ;  Johnson  r.  AVhitte- 
more,  27  Mi -h.  463,  470 ;  Hine  v.  Roberts,  4S  Conn.  2C.7;  40  Am.  Rep. 
170;  Third  Nat.  Bank  etc.  v.  Armstrong,  2.1  Minn.  5"0  ;  Minneapolis 
etc.  Co.  v.  Hally,27  Minn.  4<15  ;  Guilford  r.  McKinh-y,  61  Ga.  280  ;  Mott 
v.  Havana  Nat.  Bank,  22  Hun,  354;  Ketchum  v.  Brennan,  5:j  Miss. 
59G ;  Gleason  r.  Knapp,  26  Up.  Can.  C.  P.  553. 

15  See  citations  in  next  note. 

16  See  Hutchings  v.  Mung'er,  41  X.  Y.  155  ;  Cushman  v.  Jewell,  7 
Hun,  525,  529  ;  Taylor  r.  Finley,  43  Vt.  7S  ;  Blair  r.  Hamilton,  4s  Ind. 
32  ;  Shepard  ?;.  Cross,  33  Mich.  1)6.    But  see  contra,  Hegler  v.  Eddy.  53 
Cal.  597.    Basis  of  paragraph :  1  Corbin's  Benjamin  on  Sales,  \\  429-4G6. 

§307,  Various  conditions, —  Conditions  subsequent. 
Stipulations  concerning  price  have  sometimes  the 
effect  of  passing  property  to  the  buyer,  subject  to  a 
possible  defeasance  by  condition  subsequent,1  as  in  the 
case  of  a  sale  providing  that  upon  the  purchaser's  failure 
to  pay  over  to  the  seller  the  first  money  received  on  the 
sub-sale  of  the  goods,  the  chattels  should  be  subject  to 
the  seller's  order ; 2  or  in  the  contract  termed  "  sale  or 
return,"  as  distinguished  from  a  sale  "on  trial,"  where 
title  passes  subject  to  rescission  by  the  buyer's  exercise 
of  his  privilege  of  returning  the  goods.3 

Buyer's  option.  The  buyer's  option  in  a  contract  of 
sale  may  also  concern  other  points,  as  the  time  of  de- 
livery ; 4  and  sometimes  the  option  involves  the  action 
of  a  third  person,  under  the  special  contract.3 

Article  to  be  satisfactory.  If  an  article  is  delivered  to 
a  purchaser,  to  be  retained  and  paid  for  by  him  if  satis- 
factory, the  purchaser  may  repudiate  the  sale  if  such 
article  prove  bonafide  and  in  fact  unsatisfactory.6 

Conditions  precedent.  Conditions  precedent  in  sales 
are  illustrated  by  the  cases  of  sales  of  goods  with  privi- 
lege of  purchase,  "oil trial,"  ''on approval,"  "to arrive," 
etc.7  But  there  is  a  conflict  in  the  authorities  upon  the 


CONDITIONAL  SALES. 

full  meaning  of  the  word  "  cargo,"  in  a  contract  of 
sale,8  tlie  question  being  whether  it  requires  a  single 
shipment  of  the  whole  cargo  by  one  vessel  or  not,  as  a 
condition  precedent  on  the  seller's  part.9 

Prerequisites  to  transfer  of  title.  Several  rules  have 
been  formulated  by  leading  text-writers  on  the  present 
topic,  whereby  the  performance  of  various  conditions, 
precedent  or  concurrent,  before  or  after  the  delivery  of 
the  goods  sold,  such  as  putting  them  into  a  deliverable 
state,  or  weighing,  measuring,  or  testing  them,  is  made 
a  prerequisite  to  the  transfer  of  the  title  to  the  goods.10 

1  See  \  193,  on  SALE  WITH  CONDITION  SUBSEQUENT. 

2  Chamberlain  r.  Dickey,  31  Wis.  68.    Basis  of  foregoing  natter: 
2  Schouler  on  Personal  Property,  \  30');  referring  for  other  instances 
of  conditions  subsequent  in  sales,  to  Smith  ?>.  Dallas,  35  Ind.  2">~> ;  nn<J 
to  Worthy  ?'.  Cole,  6:)  N.  C.  157  ;  Sheffer  v.  Montgomery,  65  Pu.  St.  32J  ; 
Perkins  v,  L>acon,  13Mlch.  81. 

3  See  Hot^hkiss  v.  Higgins,  52  Conn.  205 ;  52  Am.  Bep.  5S2,  584 ; 
Hickman  v.  Shimp,  109  Pa.  St..  16;  20  The  Reporter,  345;  $21,  on 

PRIVILEGE  OF  RETURN. 

4  See  Colvin  v.  Weedman,  50  111.  311 ;  Cleveland  v.  Sterrett,  70  Pa< 
St.  204  ;  Snelling  v.  Hall,  107  Mass.  134. 

5  See  Hinchcllffe  v.  Barwick,  Law  R.  5  Ex.  JX  177  ;  31  Eng.  Rep, 
628.    Basis  of  paragraph:  2  Schouler  on  Personal  Property,  ?313; 
referring  on  ne^^l  of  care  on  seller's  part  in  making  such  stipulations, 
to  Snelling  v.  Hall,  107  Mass.  134  ;  and  Warren  v.  Kirk,  24  La.  An.  150. 

6  Exhaust  Ventilator  Co.  v.  Chicago  etc.  Ry.  Co.  28  N.  W.  Rep. 
("VVis.)  0*3  ;  22  The  Reporter,  381. 

7  S°e  Hickman  v.  Shimp,  101  Pa.  St,  Ifi ;  20  The  Reporter,  345  ; 
Hotchkiss.  ?'.  Higgins,  52  Conn.  205;  52  Am.  Rep.  582  ;  Bennett's  Ben- 
jamin on  Sales,  £g  586,  595;  §104,  on  SALE  WITH  CONDITION  PRE- 
CEDENT ;  §  20,  on  PRIVILEGE  OF  PURCHASE. 

8  See  citations  in  next  note. 

9  Compare  Ireland  v.  Livingston,  Law  R.  2  Q.  B.  99;  Law  R.  5 
Q.  B.  516  ;  Law  R.  5  IF.  L.  395;  2  Eng.  Rep.  424,  with  Kruger  ?>.  Hlanck, 
Law  R.  5  Ex.  179.    Basis  of  paragraph :  2  Schouler  on  Personal  Prop- 
erty, \  315  ;  referring,  also,  to  Bennett's  Benjamin  on  Ral"s,  <j?  5S!V-":)l  ; 
Tamvaco  ?'.  Lucas,  1  El.  &  E.  581,  592.    And  consult  Campbell  on 
Sales,  296,  297. 

10  See  Harkness  v.  Russell,  118  TJ.  S.  663,  667,  66?.  Putting  into 
deliverable  state:  See  |86;  Foster  v.  Ropes,  111  Mass.  10,  15;  Elgea 
Cotton  Cases,  22  Wall.  180,  188,  193;  Prrscott  i\  Locke,  51  X.  H.  94, 
101  ;  Langton  ?>.  Higgins,  4  Hurl.  &  N.  402  ;  Langdell's  Cases  on  Sales, 
867,  872  ;  Turley  v.  Bates,  2  Hurl.  <fe  C.  200  ;  Langdell's  Cases  on  Sales, 
696.  Weighing,  measuring,  etc.,  to  ascertain  price  :  See  \  R7  ;  Linir- 
ham  v.  Eggleston,  27  Mich.  324,  329  ;  Elgoe  Cotton  Cases,  22  Wall.  180, 
1SS  ;  Hutchinson  ?'.  Hunter,  7  Pa.  St.  140,  143  ;  Prescott  ?».  Locke,  51 
K.  IT.  94,  101  ;  Turley  •»•.  Rates,  2  Hurl.  &  C.  200  ;  Langrloirs  C'-is««s  on 
Hal-s,  692.  r,'>7-6'»'> ;  Langton  v,  HJ^Sins,  4  Hurl.  &  X.  402  ;  LangdeU'a 
Cases  on  Sales,  867, 872, 


§   308  CONDITIONAL  SALES.  448 

§  308,  Sales  "on  trial,"  —  In  general.  A  contract 
which  provides  for  subjection  of  an  article  to  trial,  and 
becomes  absolute  only  on  approval,  creates  a  condition 
precedent,  which  must  be  satisfied  before  the  promise  it 
qualifies  becomes  effectual.1  Hence  in  sales  "  on  trial " 
or  "on  approval,"2  there  is  no  sale  till  the  approval  is 
given,3  either  expressly  or  by  implication,4  resulting 
from  keeping  the  goods  beyond  the  time  allowed  for 
trial,5  and  the  title  does  not  pass  until  the  option  is  thus 
determined.6 

Time  for  return  of  goods.  In  sales  on  trial,  the  mere 
failure  to  return  the  goods  within  the  time  specified 
makes  the  sale  absolute.7  But  the  buyer  is  entitled  to 
the  full  time  agreed  on,  as  he  is  at  liberty  to  change  his 
mind  during  the  whole  term.8  And  if  no  definite  period 
of  trial  be  stated,  a 'reasonable  time  will  be  implied.9 

Notice  and  return.  It  is  the  general  rule  that  the 
buyer  should  notify  the  seller  of  the  failure  of  the  article 
to  satisfy  on  trial,10  within  the  reasonable  or  stated 
time;11  but  that  if  he  finds  the  chattel  unsuitable  and 
unsatisfactory,  lie  may  exercise  the  option  given  him, 
and  return  the  chattel  peremptorily,  without  giving  the 
seller  any  opportunity  of  remedying  defects.12 

Consumption  of  goods.  Where  tho  trial  of  goods 
which  a  party  is  entitled  to  make13  involves  the  con- 
sumption or  destruction  of  what  is  tried,  it  is  a  question 
of  fact  for  the  jury  whether  the  quantity  consumed  was 
more  than  necessary  for  trial,  so  as  to  render  the  sale 
absolute  by  the  approval  implied  from  thus  accepting  a 
part  of  the  goods.14 

1  Ilickinan  v.  Shimp,  100  Pa.  St.  16  ;  20  The  Reporter,  345. 

2  Siles  on  trial  coupled  with  a  warranty  :  2  Corbin's  Benjamin  on 
Sales,  p.  792,  \  911,  n.  27. 

3  See  citations  In  note  after  next. 

4  Implication  of  approval  from  f nilure  to  return  or  give  notice  of 
disapproval :  2  Corbin's  Benjamin  on  Sales,  p.  7:)2,  §  911,  n.  27  ;  citing, 
Hunt  v.  Wyman,  luo  Mass.  1U8  ;  Waters  Heater  Co.  v.  Mansfield,  48 


449  CONDITIONAL  SALES.  §   309 

Vt.  378 ;  Waters  Heater  Co.  v.  Smith,  120  Mass.  444 ;  Wetherby  v. 
Sleeper,  101  Muss.  138  ;  Kahn  v.  Klabunde,  50  Wis.  235. 

5  Elphick  v.  Barnes,  Law  B.  5  C.  P.  D.  326  ;  30  Eng.  Bep.  810 ;  20  Am. 
Law  Keg.  N.  S.  240  ;  Bennett's  Benjamin  on  Sales,  \  5:»3  ;  citing,  also, 
Mowbray  r.  Cady.  40  Iowa,  004  ;  McCormick  v.  Basal,  50  Iowa,  5J:J ; 
C'olton  v  Wise,  7  111.  App.  395  ;  Delamater  v.  Chappell,  48  Md.  244. 

6  Hickman  v.  Shimp,  103  Pa.  St.  16  ;  20  The  Reporter,  345. 

7  Humphries  v.  Carvalho,  16  East,  45;  Bennett's  Benjamin  on 
Sales,  g  595  ;  citing,  also,  Johnson  v.  McLane,  7  Blackf.  501 ;  Spickler 
r.  Marsh,  36  Md.  222  ;  Dewey  v.  Erie  Borough,  14  Pa.  St.  211 ;  Prairie 
Farmer  Co.  v.  Taylor,  6.)  111.  440;    18  Am.  Bep.  621;    Aultmaii  •»». 
Theirer,  34  Iowa,  272;  Waters  Heater  Co.  v.  Mansfield,  48  Vt.  37-!; 
Gibson  v.  Vail, S3  Vt.  476.    Same  effect:  2  Schouler  on  Personal  Prop- 
erty, g  311 ;  Story  on  Sales,  g  128. 

8  Ellis  v.  Mortimer,  1  Bos.  &  P.  N.  B.  257  ;  Bennett's  Benjamin  on 
Sales,  g  5!)5  ;  referring,  also,  to  Elphick  v.  Barnes,  Law  B.  5  C.  P.  D. 
32(> ;  20  Am.  Law  Beg.  N.  S.  240  ;  :-JO  Eng.  Bep.  810  ;  Aiken  v.  Hyde, 99 
Mass.  183;  Hartford  Sorghum  Manuf.  Co.  v.  Brush,  4'}  Vt.  5'?8.    And. 
consult  2  Schouler  on  Personal  Property,  \  311 ;  Story  on  Sales,  §  250. 

9  Story  on  Sales,  ?  128. 

10  Notice  of  disapproval  or  rejection:    2  Corbin's  Benjamin  on 
Sales,  p.  793,  \  911,  n.  27  ;  citing,  Spickler  v.  Marsh,  36  Md.  222  ;  Hall  v. 
Merriwether,  19  Tex.  224  ;  Prairie  Farmer  Co.  v.  Taylor,  6.')  111.  440  ;  18 
Am.  Bep.  621 ;  Smalley  v.  Hendrickson,  29  N.  J.  L.  371. 

11  See  Dewey  v.  Erie  Borough,  14  Pa.  St.  411.    But  compare  Gibson 
v.  Vail,  53  Vt.  476.    And  consult  Kahn  v.  Klabunde,  50  Wis.  2->5,  and 
cases  therein  cited. 

12  2  Schouler    on    Personal  Property,  g  311,  whence  paragraph 
derived.    And  it  makes  no  difference  that  the  chattel  after  its  return 
to  the  seller  worked  well  under  his  management  without  alteration 
or  repair  :   Aiken  v.  Hyde,  99  Mass.  183. 

13  Nature  of  trial  discussed :  2  Corbin's  Benjamin  on  Sales,  \  911, 
n.  27. 

14  See  Elliott  v.  Thomas,  3  Mees.  <fe  W.  170  ;  Langdell's  Cases  on 
Sales,  145 ;  Lucy  v.  Moullet,  5  Hurl.  &  N.  229;  29  Law  J.  Ex.  110  ;  Ben- 
nett's Benjamin  on  Sales,  g  ">9fi;  citing,  also,  Okell  ?>.  Smith,  I  Stark. 
107.    Pending  trial,  position  of  so-called  buyer  rather  that  of  bailee 
than  of  full  buyer:  2  Schouler  on  Personal  Property,  §  311  ;  referring 
to  Hunt  v.  Wyman,  100  Mass.  198  ;   Hartford  Sorghum  etc.  Co.  v. 
Brush,  43  Vt,  528  ;  Story  on  Sales,  §  400. 

\  309.  Right  to  return  goods.  —  Option  to  keep  or  to  re- 
turn. There  is  a  manifest  distinction  between  an  op- 
tional right  in  the  party  receiving  goods  to  retain  them 
if  he  liked  them,  and  an  optional  right  to  return  the 
same  goods  in  whole  or  in  part  if  he  did  not  like  them.1 
In  the  former  case  the  title  will  not  pass  till  the  option 
is  determined,2  while  in  the  latter  it  passes  immedi- 
ately to  the  party  receiving  the  goods,  subject  to  the 
right  to  rescind 3  and  return.4 


g   309  CONDITIONAL   SALES.  450 

Variation  of  alternative.  And  the  principle  is  the 
same  in  regard  to  the  passing  of  title  in  the  latter  case, 
whether  the  alternative  is  to  return  specifically  or  in 
kind,  or  specifically,  or  to  pay5  a  certain  sum.6 

Similar  transactions.  But  there  is  a  class  of  cases 
apparently  very  similar  where  a  different  result  has 
been  reached  ; 7  and  in  some  of  these  cases  the  relation 
of  the  parties  has  been  considered  like  that  of  consignor 
and  consignee,  or  principal  and  agent  ;8  while  in  others 
the  controlling  fact  was  the  existence  of  a  general  cus- 
tom, which  by  implication  became  a  part  of  the  con- 
tract, whereby  it  was  understood  that  the  title  was  to 
remain  in  the  original  owner.9 

Independent  covenant  and  failure  to  return.  Where 
parties  agreed  to  set  up  a  printing-press  in  the  office  of 
a  corporation,  which  was  to  have  thirty  days  thereafter 
to  determine  whether  or  not  it  would  keep  the  same, 
for  a  sum  specified  to  be  paid  at  certain  dates,  and  such 
parties  also  agreed  to  keep  the  press  in  order  perma- 
nently, without  charge,  it  was  held  that  the  agreement 
to  keep  the  press  permanently  in  order  was  in  depend- 
ent,10 and  that  by  keeping  the  press  thirty  days  without 
electing  to  return  the  same,  the  corporation  became 
liable  for  the  purchase  price.11 

1  See  Hotchkiss  •».  Rigging,  52  Conn.  205  ;  52  Am.  Rep.  532,  583  ; 
Hunt  v.  Wyman,  100  Mass.  200. 

2  See  Hickman  v.  Shimp,  109  Pa.  St.  16  ;  20  The  Reporter,  345. 

3  See  Hickman  r.  Shimp,  109  Pa.  St.  16  ;  20  The  Reporter,  345  ;  re- 
ferring to  Huntt1.  Wyman,  100  Mass.  198;  Wharton  on  Contracts,  5jO. 

4  Hotchkiss  ?'.  Higgins,  52  Conn.  205  ;  52  Am.  Rep.  5S2,  58.°,,  stating 
that  the  same  distinction  is  recognized  and  applied  in  Holbrook  ?'. 
Armstrong,  1  Fairf.  31  ;  Dearborn  v.  Turner,  16  M°.  17  :  33  Am.  Dec. 
6:iO  ;  Perkins  v.  Douglass,  20  Me.  317  ;  and  Hunt  r.  Wymau,  loo  Muss. 
200.    And  consult  \  193,  on  SALE  WITH  COXDITIOX  SUBSEQUEXT. 

5  See  Crocker  v.  Gullifer,  44  Me.  393  ;  69  Am.  Dec.  118. 

6  Buswell   ?».  Ricknell.  17  Me.   344  ;  35  Am.   Dec.  262  ;  as  cited, 
Hotchkiss  r.  Higgins,  52  Conn.  205  ;  52  Am.  Rep.  582.    And  consult 
\  21,  on  PRIVILEGE  OF  RETURX. 

7  See  citations  in  succeeding  notes.    And  consult  note  to  Elphick 
v.  Barnes,  20  Am.  Law  Reg.  N.  S.  244. 


Prairie  Farmer  Co.  v.  Taylor,  69  111.  440  ;  18  Am.  Rep.  621. 


451  CONDITIONAL  SALES.  \   310 

8  Hotchkiss  v.  Higgins,  52  Conn.  205  ;  52  Am.  Hep.  582,  584. 

9  Hotchkiss  v.  nigglns,  52  Conn.  205  ;  52  Am.  Rep.  582,  584  ;  refer- 
ring to  Meldrum  v.  Snow,  9  Pick.  441 ;  20  Am.  Dec.  489. 

10  Prairie  Farmer  Co.  v.  Taylor,  69  111.  440  ;  18  Am.  Rep.  621,  622  ; 
citing,  Thorpe  v.  Thorpe,  1  Salk.  171;  Nelson  v.  Owen,  41  111.  78; 
White  v.  Gilman,  43  111.  502  ;  Putnam  v.  Mellen,  34  N.  H.  71. 

: 

g  310.  Sale  or  return.  —  Status  of  title.  In  the  class  of 
agreements  usually  termed  "sale  or  return,"1  the  sale 
is  a  conditional2  or  defeasible  one;3  and  the  right  of 
property  in  the  goods  passes  to  the  purchaser,  subject 
to  be  divested  out  of  him  and  revested  in  the  vendor,4 
by  a  return  of  the  goods  according  to  the  terms  of  the 
contract.5 

Effect  of  failure  to  return.  Usually  the  condition  is 
that  the  buyer  may  return  the  goods  within  a  fixed  or 
reasonable  time,  at  his  option;6  and  it  has  been  held 
that  the  goods  so  sold  pass  subject  to  the  option  in  him 
to  return  them,7  and  that  if  he  fails  to  exercise  the 
option  within  the  proper  time,  the  price  of  the  goods 
may  be  recovered  as  upon  an  absolute  sale.8 

Distinguished  from  similar  agreements.  But  a  bargain 
of  "  sale  or  return,"  in  the  strict  sense,  which  is  subject 
to  a  condition  subsequent  rendering  the  contract  de- 
feasible after  delivery  of  the  chattel,9  is  to  be  distin- 
guished from  a  transaction  which  amounts  to  a  mere 
bailment  with  the  privilege  of  purchase;10  while  the 
contract  which  gives  the  option  "to  return  "  in  words, 
generally  seems  rather  to  be  subject  to  a  condition  pre- 
cedent, and  to  be  a  contract  for  a  sale  on  trial.11 

Exercise  of  privilege  of  return.  Whether  the  privilege 
of  returning  within  a  reasonable  or  the  stated  time  has 
been  duly  exercised  so  as  to  terminate  the  sale,  is  a 
question  of  fact  to  be  decided  in  accordance  with  the 
mutual  understanding ; 12  and  where  the  seller  refused 
to  receive  back  a  machine  which  failed  to  work  as 


§   310  CONDITIONAL   SALES.  452 

represented,  and  which  did  not  stand  a  further  test 
then  made  on  the  seller's  premises,  the  buyer  was  held 
justified  in  driving  the  machine  into  his  yard,  leaving 
it  there,  and  notifying  the  seller  to  take  it  away.13 

Injury  to  chattel.  If  the  buyer  materially  impair  the 
condition  of  the  chattel  by  misuse  or  otherwise,  while 
it  is  in  his  keeping,  and  is  thus  unable  to  place  the 
seller  in  statu  quo,  he  cannot  in  general  take  advantage 
of  the  condition  under  which  it  was  delivered  so  as  to 
rescind  the  contract;14  but  for  an  injury  occasioned 
without  the  buyer's  fault,  as  in  the  case  of  an  animal 
taken  under  a  bargain  of  "sale  or  return,"  the  buyer 
has  sometimes  been  held  not  to  lose  his  privilege  of 
return.15 

1  Various  applications  of  term  :  Soe  2  Schouler  on  Personal  Prop- 
erty, §  312;  interring  to  Meldrum  ?'.  fenow,  9  Pick.  441  ;  20  Am.  Doc. 
48!) ;  In  re  Nevill,  Law  K.  6  Ch.  3:»7  ;  Story  on  Sales,  \  24').    Subject 
discussed  :  2  Corbin's  Benjamin  on  Sales,  p.  796,  \  915,  n.  20  ;  20  Am. 
Law  Reg.  X.  S.  244. 

2  See  Hickman  v.  Shimp,  100  Pa.  St.  16 ;  20  The  Reporter,  3J5. 

3  Hot^hkiss  7'.  Higgris,  52  Conn.  205  ;  52  Am.  Rep.  582,  534  ;  citing, 
Addison  on  Contracts  (*th  ed.),  bic.  2,  ch.  7,  bottom  p.  532. 

4  See  \  193,  on  SALE  WITH  CONDITION"  SUBSEQCEXT. 

5  Hotchkiss  ?'.  Iliggins,  52  Conn.  205;  52  Am.  Rep.  582;  citing, 
Addison  on  Contracts  ("<th  ed.),  bk.  2,  ch.  7,  bottom  p.  5:>2  ;  and  refer- 
ring, also,  to  Moss  \\  Sweet,  3  Eng.  L.  &  Eq.   311 ;  S'-hlesinger  t». 
Btratton,  9  R.  I.  578  ;  Jameson  v.  Gregory,  4  Met.  (Ky.)  363  ;  Kinney  v. 
Bradlee,  117  Muss.  321 ;  Martin  v.  Adams,  104  Mass.  262. 

6  Schlesinger  v.  Stratton,  9  R.  I.  578. 

7  See  citations  in  next  note. 

8  Schlesinger  v.  Stratton,  9  R.  I.  578;  as  quoted,  Hotchkiss  r. 
Hi^gins,  52  Conn.  20") ;  52  Am.  Rep.  582,  note  at  p.  5o6  ;  referring  to 
Moss  v.  Sweet,  3  Eng.  L.  &  Eq.  311 ;  16  Q.  B.  493  ;  Bianchi  v.  Nash.  1 
Mees.  &  W.  545 ;  Beverly  v.  Lincoln  Gas  Light  &  Coke  Co.  6  Ad.  &  E. 
829. 

9  See  Hickman  v.  Shimp,  109  Pa.  St.  16 ;  20  The  Reporter,  345. 
Such  an  agreement  may  itself  contain  a  condition  precedent,  KH  that 
of  paying  or  securing  the  price  before  the  title  passes :  See  ( -rocker 
v.  Gullifer,  44  Me.  431 ;  69  Am.  Dec.  118. 

10  See  Chamberlain  v.  Smith,  44  Pa.  St.  43  ;  also,  Porter  v.  Petten- 
gill,  12  N.  II.  2JD. 

11  2  Schouler  on   Personal   Property,  ?  212,  whence  paragraph 
derived,  here  referring  to  Elphick  v.  Barnes,  Law  H.  5  C.  P.  D.  321  ; 
SO  Eug.  Rep.  810  ;  20  Am.  Law  Reg.  N.  S.  240. 

12  See  Gammon  v.  Abrams,  53  AVis.  323;  Hinchcliffe  v.  Barwick, 
Law  R.  5  Ex.  I).  177 ;  31  Eug.  Rep.  628. 


CONDITIONAL  SALES. 

13  Hall  ?».  JEtna  Manuf.  Co.  30  Iowa,  215.    See  2  Schouler  o:\  Per- 
sonal Property,  #  ai'2  ;  referring, also,  to  Paddeu  v.  Marsh,  34  Iowa,  5.12. 

14  See  Hay  v.  Thompson,  12  Cush.  281 ;  59  Am.  Dec.  187  ;  also  noted. 
20  Am.  Law  Beg.  N.  b.  '245. 

15  See  Head  v.  Tattersall,  Law  R.  7  Ex.  7  ;  1  En.sr.  Rep.  140 ;  2 
Schouler  on  Personal   Property,  §  312,  whence  paragraph  derived  ; 
referring,  also,  to  Hunt  ?\  Wyman,  100  Mass.  1  ,/S.    Death  of  horse 
taken  upon  an  option,  within  time  limited  for  return,  without  fault 
of  buyer  :  See  Elphick  v.  Barnes,  Law  R.  5  C.  P.  I).  321  ;  30  Kng.  Rpp. 
810  :  20  Am.  Law  Reg.  N.  S.  240.    Consult  further,  Bennett's  Benjamin 
on  Sales,  \\  599, 599  a. 

I  311,  Sale  of  goods  to  arrive,  etc.  —  In  general.  A  sale 
of  goods  "to  arrive,"  or  on  arrival,  has  been  stated  to 
be  a  sale  of  goods  expected  from  abroad,  which  is  made 
before  they  arrive,  upon  the  condition  that  the  tiling 
sold  shall  arrive,  and  that  if  it  do  not  arrive,  the  bargain 
shall  bo  void.1  But  the  numerous  English  decisions 
upon  this  kind  of  contracts  do  not  clearly  settle  when 
the  language  used  therein  shall  amount  to  a  condition 
precedent,  or  even  then,  what  that  condition  shall  be.2 

Double  condition  precedent.  In  such  cases  two  dis- 
tinct stipulations  are  often,  though  not  always,  blended, 
namely,  one  as  to  the  cargo  being  on  the  vessel  in  ques- 
tion, and  the  other,  as  to  the  safe  arrival  of  that  vessel, 
so  that  there  may  be  set  up,  as  a  prerequisite  of  full 
performance  under  the  contract,  a  double  condition 
precedent,  first,  that  the  vessel  shall  arrive  ;  and  second, 
that  on  arrival,  the  subject-matter  shall  prove  to  be  on 
board.3 

American  views.  The  tendency  of  the  American 
cases  is  to  regard  the  stipulation  for  arrival  in  a  sale  of 
goods  "to  arrive,"  whether  it  be  by  ocean  or  inland 
transportation,  as  conditional,4  and  the  contract  as  ex- 
ecutory, and  not  passing  the  title  until  the  goods  actu- 
ally arrive,5  so  that  the  contraci  is  at  an  end  if  the 
goods  contracted  for  do  not  arrive,  either  from  the  ves- 
sel being  lost,  or  other  cause  by  accident,  and  without 
any  fraud  or  fault  of  the  vendor.6 


§    312  CONDITIONAL   SALES.  454 

Notice  of  name  of  ship.  The  condition  also  found  in 
commercial  sales  of  goods  "to  arrive,"  that  the  seller 
shall  give  notice  of  the  name  of  the  ship  on  which  the 
goods  are  expected,  as  soon  as  he  finds  it  out,  must  bo 
strictly  fulfilled  as  a  condition  precedent  to  the  seller's 
right  to  enforce  the  bargain  ; 7  but  by  local  usage,  notice 
to  the  buyer's  broker,  with  whom  the  contract  was 
made,  may  constitute  sufficient  performance  of  the 
condition.8 

1  Story  on  (Bales,  ?  240  ;  citing,  Shields  v.   Pettoe,  2  Sand.  2G2. 
Most  usually  this  important  class  of  modern  mercantile  contracts 
relates  to  specific  goods,  the  shipment  of  which  has  been  advised  by 
mail-steamer  or  telegraph  :  Campbell  on  Sales,  2^5. 

2  2  Schouler  on  Personal  Property,  §  "14.    Roe  statements  of  (In- 
cisions in    Bennett's  Benjamin  on  Sales,  \\  C78-565 ;    Campbeil  on 
Sales,  21)5,  21)6. 

3  2  Schouler  on  Personal  Property,  \  314.    Classification  of  Eng- 
lish decisions  on  subject:  Bennett's  Benjamin  on  Sales,  g  5bii.    S^  e 
Boyd  ?'.  Siffkin,  2  Camp.  326  ;  Ildo  v.  Thornton,  3  CVnin.  274  ;  Lovrtt 
r.  Hamilton,  5  Mees.  &  W.  630  ;  Johnson  r.  McDonald, !>  Mees.  <v  W. 
600;  Simonds  r.  Braddon,  2  Com.  B.  N.  S.  324  ;  Gornes^n  v.  Perri'i,  2 
Com.  B.  N.  S.  OS  I  ;  Hall  v.  Rawson,  4  Com.  B.  N.  S.  85  ;  Vernede  r. 
Wob"r,  1  Hurl  &  N.  311  ;  Smith  v.  Myers,  Law  R.  5  Q.  B.  42!) ;  Law  R. 
7  Q.  B.  139  ;  1  Eng.  Rep.  42. 

4  See  citations  in  next  note. 

5  See  Benedict  v.  Fir-Id,  if,  X.  Y.  505  ;  Neldon  ?',  Smith,  7  Vroom, 
l-!8  :  2  Sr-honl'T  on    Personal   Property,  \  314,  whence  paragraph 
mainly  derived. 

G  Xeldon  v.  Smith,  7  Vroom,  148.  And  consult  Story  on  Sales,  p. 
2"1,  ?  24:),  n.  4  ;  2  Corbin's  Benjamin,  \  880,  n.  2J  ;  citing,  also,  Rogers  r. 
V.'oodruff,  2.5  Ohio  St.  632  ;  13  Am.  Rep.  276 ;  Dike  v.  Reitlinger,  24 
Hun,  241. 

7  See  Buck  ?'.  Spence,  4  Camp.  320  ;  Graves  v,  Legg,  0  Ex.  801  ;  11 
Ex.  64J  ;  Bennett's  Benjamin  oa  Sales,  §  588;  and  2  Corbin's  Benja- 
min o-i  Sales,  §  882  ;  referring,  also,  to  Gilke  v.  Leonine,  4  Com.  B. 
>'.  S.  485. 

8  See  Graves  ?-.  Legg,  9  Ex.  700  ;  11  Ex.  642  ;  2  Schouler  on  Per- 
sonal Property,  \  324,  whence  paragraph  largely  derived  ;  Campbell 
on  Sales,  296. 

\  312,  Salo  by  sample  or  description,  —  Comparison  of 
bulk  with  sample.  With  regard  to  a  sale  by  sample,  it  is 
frequently  laid  down  in  the  courts  of  England  and  of 
many  parts  of  this  country,  as  a  rule  enforced  for  the 
buyer's  protection  and  independent  of  usage,  that  there 
is  an  implied  condition  that  the  buyer  shall  have  a  fair 


455  CONDITIONAL   SALES. 

opportunity  of  comparing  the  bulk  with  the  sample,1 
and  that  he  may  refuse  to  carry  out  the  bargain  if  he  is 
denied  such  opportunity.2 

Answering  description  or  order.  So  where  a  thing  is 
sold  by  a  particular  description,  the  same  authorities 
consider  that  there  is  a  condition  precedent  implied 
that  the  thing  which  the  seller  delivers  or  tenders  shall 
answer  the  description;3  and  so  generally  where  the 
subject-matter  of  the  sale  is  unascertained  and  the  seller 
is  to  fulfill  an  order.4 

Engagement  as  conditon  rather  than  warranty.  The 
engagement  in  such  cases  is  regarded  not  as  a  mere 
warranty  or  collateral  stipulation,5  but  as  a  condition 
or  integral  part  of  the  contract,6  because  the  exist- 
ence of  the  qualities  agreed  upon,  being  part  of  the 
description  of  the  thing  sold,  becomes  essential  to  its 
identity,  and  the  vendee  cannot  be  obliged  to  receive 
and  pay  for  a  thing  different  from  that  for  which  he 
contracted.7 

Different  views.  But  such  an  implied  engagement  on 
the  part  of  the  seller  is  often  treated  as  a  warranty,8 
while  it  is  sometimes  asserted  that  it  is  quite  immaterial 
whether  the  buyer's  action  under  a  supply  of  goods  not 
corresponding  with  the  description  shall  be  technically 
considered  an  action  on  a  warranty,  or  an  action  for 
non-performance  of  a  condition.9 

Need  of  performance  of  undertaking.  Yet  despite  the 
apparent  confusion  arising  from  the  want  of  precision  in 
the  use  of  terms  in  this  respect,10  it  is  well  settled  that 
performance  of  the  seller's  stipulation,  whether  he  be 
a  dealer  or  a  manufacturer,11  is  of  the  essence  of  the 
contract,12  and  that  the  buyer  may  refuse  to  perform 
his  part  of  the  bargain,13  unless  the  seller  who  under- 
takes to  supply  a  chattel  of  a  particular  kind  or  descrip- 
tion14 supplies  accordingly.15 


J   312  CONDITIONAL  SALES.  456 

1    See  citations  in  next  note. 

-  See  Lorymer  r.  Smith,  1  Barn.  &  C.  1  ;  Grimoldby  v.  Wells,  Law 
R.  10  Com.  P.  391  ;  12  Eng.  Rep.  451  ;  Uutchess  C'o.  v.  Harding,  4.)  N.  V. 
321  ;  as  cited  in  support  of  text  in  2  Schouler  on  Personal  Property, 
2  316.  And  consult  Bennett's  Benjamin  on  Sales,  \  594  ;  Campbell  on 
Sales,  305-307. 

3  2    Schouler    on   Personal    Property,  §  316,  whence  paragraph 
derived.    And  see  Hedstrom  r.  Toronto  Car  Wheel,  31  Vp.  Can.  c.  1*. 
42'» ;  as  cited,  2  Corbin's  Benjamin  on  Sales,  \  918,  n.  32.    Consult,  also, 
Biddle  on  Chattel  Warranties,  g  89. 

4  See  2  Smith's  Lead.  Cas.  27. 

5  Definition  of  warranty:  Neave  v.  Arntz,  56  Wis.  174;  Jones  r. 
Georg.',  61  Tex.  345  ;  48  Am.  Rep.  280,  281 ;  Bagley  v.  Cleveland  Rolling 
Mill  Co.  21   Fed.  Rep.  159 ;  30  Alb.  L.  J.  4'.)0,  4J1.    And  see  Dorr  v. 
Fisher,  1   Gush.  273;    Harley  v.  Iron  Works,  6fi  Cal.  208;    19  The 
Reporter,  100;  Cary  v.  Gruman,  4  Hill,  626  ;  McFarland  v.  Newman, 
9  Watts,  55  ;  44  Am.  Dec.  497,  499. 

6  Warranty  and  condition  distinguished :  Dorr  r.  Fisher,  1  Cush. 
273.    But  see  Boardman  v.  Spooner,  13  Allen,  3G1 ;  Langdell's  Cases 
on  Sales,  610. 

7  2  Smith's  Lead.  Cas.  127.    And  see  Chanter  v.  Hopkins,  4  Mees. 
<fc  W.  399;  Bennett's  Benjamin  on  Sales,  §600;  Campbell  on  Salts, 
SOI,  302.     Compare  Story  on  Sales,  $  377.     Thus  even  if  the  bulk 
actually  correspond  with  the  sample,  yet  the  purchaser  is  not  bound 
to  receive  the  goods  tendered  if  they  fail  to  answer  a  certain  descrip- 
tion further  incorporated  in  the  contract:  See  Nichols  v.  Godts,  10 
Ex.  1  (;'  foreign  refined  rape  oil  ") ;  Bannerman  v.  White,  10  Com.  B. 
N.  S.  844  (hops  not  sulphur  grown) ;  Azemar  v.  Casolla,  Law  R.  2 
Com.  P.  431-477 ;  36  Law  J.  Com.  P.  124  (long-stapled  Salem  cottor. )  ; 
also,  Dutchess  Co.  v.  Hardir.g,  49  N.  Y.  321 ;  Carson  v.  Buillie,  1!)  Pa. 
St.  375;  57  Am.  Dec.  651);  Pennock  v.  Stygles,  54  Vt.  22.'];  \Yoods  v. 
Miller,  55  Iowa,  168  ("early  rose  potatoes").    So  the  bargain  for  a 
book  or  map  according  to  a  certain  prospectus,  is  held  not  to  be 
binding  upon  the  subscriber  where  the  thing  when  offered  proves  so 
materially  different  as  to  inherent  qualities  from  that  s^t  forth  in 
the  prospectus,  that  it  is  not  the  specific  thing  which  was  agreed 
upon  :  See  Paton  v.  Duncan,  3  Car.  <t  P.  336.    Basis  of  paragraph  :  2 
Schouler  on  Personal  Property,  \\  316,  317. 

8  See  Hogins  r.  Plympton,  11  Pick.  99, 100  ;  Henshaw  v.  Robins,  9 
Met.  87  ;  43  Am.  Dec.  367  ;  Story  on  Sales,  \  353. 

9  Wolcott  v.  Mount,  36  N.  J.  L.  262,  266 ;  13  Am.  Rep.  447.    And  see 
Bannerman  v.  White,  10  Com.  B.  N.  S.  844  ;  Bennett's  Benjamin  on 
8 .lies,  \  600,  \\.jy  ;  2  Corbin's  Benjamin  on  Sales,  \  ni8,  n.  3'j  ;  2  Schouler 
on  Personal  Property,  \  316 ;  Biddle  on  Chattel  Warranties,  \\  103-105. 

10  See  Bannerman  v.  White,  10  Com.  B.  N.  S.  844  ;  31  Law  J.  Com. 
P.  28. 

11  Undertaking  that  goods  of  party's  own  manufacture  :  See  John- 
son ?'.  Ray  1  ton, Law  R.  7  Q.  B.  D.  4J8.    And  consult  Biddle  on  Chattel 
Warranties,  \\  138-140. 

12  See  citations  in  succeeding  notes.    And  see  Campbell  on  Sales. 
300. 

13  See  Wolcott  v.  Mount,  36  N.  J.  L.  262,  266 ;  13  Am.  Rep.  447. 

14  See  Winsor  v.  Lombard,  18  Pick.  6. 

15  2  Schouler  on  Personal  Property,  ?  316.    And  the  buyer's  right 
so  universally  conceded  to  refuse  performance,  or  as  it  is  sometimes 


457  CONDITIONAL  SALES.  J   313 

phrased,  to  repudiate  the  contract,  for  the  non-conformity  of  the 
article  delivered  to  the  description  under  vyhich  it  was  sold,  is  founded 
on  the  seller's  engagement,  by  such  description,  that  the  article  sold 
shall  correspond  with  the  description  :  2  Schouler  on  Personal  Prop- 
erty, §  810;  citing,  Nichols  r.  Godts,  10  Ex.  101 ;  Bannerman  v.  White, 
10  Com.  B.  N  S.  844 ;  Azemar  v.  Casella,  Law  R.  2  Com.  P.  431 ;  Josling 
v.  Kingsford,  13  Com.  B.  N.  S.  447 ;  Bennett's  Benjamin  on  Sales, 
U  600-005  ;  Henshaw  v.  Robins,  9  Met.  87 ;  43  Am.  Dec.  307 ;  Borrekins 
v.  Bevan,  3  Rawle,  23  ;  23  Am.  Dec.  85 ;  Hawkins  v  Pemberton,  51 
N.  Y.  324  ;  10  Am.  Rep.  595  ;  Wolcott  v.  Mount,  36  N.  J.  L.  2GJ ;  r*  Am. 
Rop.  447  ;  Beals  v.  Olmstead,  24  Vt.  114  ;  .r.S  Am.  Dec.  150 ;  Orson  v. 
Baillie,  19  Pa.  St.  375 ;  57  Am.  Dec.  659 ;  Dounce  v.  Dow,  60  N.  Y.  411. 

§  313,  Genuine  character  of  securities.  —  Seller's  obli- 
gation concerning.  The  vendor  who  sells  promissory 
notes,  bills  of  exchange,  bonds,  stocks,  or  any  nego- 
tiable instruments  or  commercial  securities  of  an  incor- 
poreal character,  is  bound  to  deliver  that  which  is 
genuine,1  and  not  that  which  is  false,  counterfeit,  or 
not  marketable,  by  the  name  or  denomination  used  in 
describing  it.2 

Condition  or  warranty.  In  England,  this  obligation 
of  the  seller  to  deliver  genuine  securities  is  regarded  as 
a  condition  precedent,  forming  part  of  the  principal 
contract  itself,  and  not  as  a  mere  collateral  stipulation 
or  warranty ; 3  but  many  of  the  American  cases  treat 
such  obligation  as  founded  on  an  implied  warranty.4 

Effect  of  non-compliance.  Yet  it  is  generally  admitted 
that  the  effect  of  the  seller's  failure  to  perform  his  obli- 
gation in  this  respect  is  to  authorize  the  buyer  to  re- 
pudiate the  contract  entirely,5  and  to  recover  back  the 
purchase  money,  if  it  is  already  paid,  or  to  refuse  to 
take  and  pay  for  the  spurious  thing  when  it  is  tendered 
for  acceptance.6 

1      See   citations   in   next  note.     And   see   Biddle    on    Chattel 

Warranties,  \  131. 


NEWMARK  SALES.  — 39. 


§    314  CONDITIONAL  SALES.  458 

3  See  English  authorities  cited  in  last  note. 

4  See  American  authorities  cited  in  note  before  last.    And  con- 
sult Story  on  Sales,  f  367  i ;  2  Corbin's  Benjamin  on  Sales,  \  9'24,  n.  36  ; 
Quoting  Swanzey  v.  Parker,  50  Pa.  St.  441,  450.    On  sale  of  accounts 
implied  warranty  that  they  are  genuine :  Gilchrist  v.  Hilliard,  53  Vt. 
592  ;  38  Am.  Hep.  706. 

5  See  citations  in  next  note.    Right  of  repudiation  doubly  sure  if 
seller  guilty  of  fraud :  Bell  v.  Cafferty,  21  Ind.  411.    And  see  Webb  v. 
Odell,  49  N.  Y.  583. 

6  2  Schouler  on  Personal  Property,  ?  318.    And  see  Campbell  on 
Sales,  307  ;  Jones  v.  Ryder,  5  Taunt.  578  ;  Young  v.  Cole,  3  Bing.  ]ST.  C. 
724  ;  Westropp  v.  Solomon,  8  Com.  B.  345  ;  Gompertz  v.  Bartlett,  2  El. 
<fc  B.  849  ;  23  Law  J.  Q.  B.  65. 

§  ?14.  Failure  to  furnish  stipulated  securities. —  When 
there  is  a  failure  of  consideration.  The  condition  or 
warranty  imposed  upon  the  seller  of  negotiable  or  in- 
corporeal securities  is  unfulfilled  wherever  the  thing 
delivered  is  not  the  genuine  thing  bargained  for.1  and 
the  material  consideration  of  the  sale  fails2  of  effect;3 
as  where  the  instrument  is  false,  forged,  counterfeit,  or 
otherwise  invalid  ;4  or  where  foreign  bonds,  seemingly 
good,  turned  out  to  have  become  unmarketable  be- 
cause repudiated  by  the  government  of  the  State  under 
whose  authority  they  purported  to  have  been  issued  ; 3 
or  where  names  signed  or  indorsed  upon  negotiable 
paper  prove  to  have  been  forged.6 

Thing  not  entirely  worthless.  And  even  though  the 
thing  sold  be  not  entirely  worthless,  as  where  one  good 
indorsement  on  a  note  proves  genuine,  though  the 
other  signatures  were  forged,7  the  general  rule  still 
applies,  and  the  contract  fails  for  lack  of  consideration.8 

Getting  intended  subject-matter.  But  it  is  a  question 
for  the  jury  whether  the  thing  delivered  be  what  was 
really  intended  by  both  parties  as  the  subject-matter  of 
the  sale,  although  not  very  accurately  described  ;9  and 
if  such  be  the  case,  the  seller  fulfills  his  obligation  by 
delivering  or  tendering  it.10 

Features  not  covered.  Nor  does  the  seller's  obliga- 
tion extend  beyond  the  genuine  character  of  the  in- 


459  CONDITIONAL   SALES.  g   314 

strument  so  as  to  cover  the  solvency  of  any  party 
thereto.11 

1  See  citations  in  succeeding  notes. 

2  Failure  of  consideration  generally  :  See  subsequent  chapter  on 
hat  subject. 

3  2   Schouler  on    Personal   Property,  \  318,  whence   paragraph 
largely  derived.    And  see  Campbell  on  Sales,  3u7. 

4  See  Jones  v.  Kyder,  5  Taunt.  488  ;  Gorapertz  ?>.  Bartlett,  2  El.  & 
B.  843  ;  Wood  v.  Sheldon,  13  Vroom,  421 ;  36  Am.  Rep.  523. 

5  See  Young  v.  Cole,  3  Bing.  N.  C.  724. 

6  See  Gurney  v.  Smith,  4  El.  &  B.  133  ;  Aldrich  v.  Jackson,  5  R.  I. 
218;  Dumont  v.  Williamson,  18  Ohio  St,  215;  Terry  v.  Bissell,  26 
Conn.  23;  Ledwich  v.  McKim,  53  N.  Y.  307;  Worthington  v.  Cowles, 
112  Mass.  30  ;  Ward  v.  Haggard,  75  Ind.  381  ;  Cabot  Bank  v.  Morton,  4 
Gray,  156.     Oontra,  Baxter  v.  Duren,  19  Me.  434  ;  doubted  in  Hussey  v. 
Sibley,  66  Me.  192.    Consult,  also,  Bennett's  Benjamin  on  Sales,  §607, 
n.  e. 

7  See  Gurney  v.  Womersley,  4  El.  <fe  B.  133  ;  24  Law  J.  Q.  B.  46. 

8  2  Schouler  on  Personal    Property,  §  318.    And   see  Bennett's 
Benjamin  on  Sales,  \  60S,  n.  n  ;  referring,  also,  to  Woodland  v.  Fear, 
7  El.  &  B.  519 ;  26  Law  J.  Q.  B.  202  ;  and  to  Kennedy  v.  Panama  etc. 
Mail  Co.  Law  R.  2  Q.  B.  587. 

9  See  Mitchell  v.  Newhall,  15  Mees.  &  W.  308  ;  Lamert  v.  Heath, 
15  Mees.  &  W.  487  ;  Bennett's  Benjamin  on  Sales,  f  603  ;  2  Corbin's 
Benjamin  on  Sales,  §  927,  n.  37  ;  also  stating  Edwards  v.  Marcy,  2 
Allen,  436;  Charnley  v.  Dulles,  8  Watts  &  S.  353;   and  Porter  v. 
Bright,  82  Pa.  St.  441. 

10  2  Schouler  on  Personal  Property,  ?  318. 

11  See  Day  v.  Kinney,  131  Mass.  37  ;  Burgess  v.  Chapin,  5  R.  I.  225 : 
2  Sohouler  on  Personal  Property,  318,  whence  paragraph  derived. 
And  consult  2  Corbin's  Benjamin  on  Sales,  §924,  n.  36;  Bennett's 
Benjamin  on  Sales,  $  607,  n.  e  I  citing,  also,  Beckwith  v.  Farnum,  5 
R.  I.  2oO.    Similar  views  concerning  promissory  note  void  for  usury 
(Littauer  v.  Goldman,  72  N.  Y.  506;  28  Am.  Rep.  171);  and  stock 
fraudulently  over-issued:  People's  Bank  v.  Kurt/,  99  Pa.  St.  344  ;  44 
Am.  Rep.  li2  ;  Lamert  v.  Heath,  15  Mees.  &  W,  487. 


315  WARRANTY  IN  GENERAL.  460 


CHAPTER  XXII. 

WARRANTY    IN    GENERAL. 

§  315.  In  general. 

g  316.  Kinds. 

\  317.  Form  and  requisites. 

£  318.  Expressions  of  opinion,  etc. 

2  319.  Warranties  by  agents. 

g  320.  Patent  defects. 

\  321.  Soundness  or  other  qualities  of  animals. 

\  322.  Qualified  or  conditional  warranty. 

\  323.  Notice  of  defects. 

g  315,  In  general.  —  Definition.  A  warranty  is  an  ex- 
press or  implied  statement  of  a  matter  which  a  party 
to  a  contract  undertakes  shall  be  part  of  the  same, 
though  collateral  to  its  immediate  object.1  Yet  strictly 
speaking,  though  it  is  a  concomitant,  it  is  also  a  col- 
lateral, self-existent  contract,  and  no  more  a  part  of 
the  sale  than  a  covenant  in  a  deed  is  a  part  of  the 
conveyance.2 

Distinguished  from  condition.  Nor  is  it  strictly  a  con- 
dition, since  it  neither  suspends  nor  defeats  the  com- 
pletion of  the  sale,  the  vesting  of  the  thing  sold,  nor  the 
right  to  the  purchase  money;3  though  a  warranty  is 
sometimes  treated  as  a  condition  subsequent,  to  avoid 
circuity  of  action.4 

Distinguished  from  fraud.  Warranty  differs  from 
fraud  in  not  necessarily  involving  knowledge  or  in- 
difference concerning  the  correctness  of  the  representa- 
tion ;5  but  a  warranty  may  also  be  a  fraud  if  its  falsity 
be  known  to  the  party  giving  it.6 

Oral  or  written.  It  may  be  oral  or  in  writing,7  and 
need  not  be  written,  where  the  sale  itself  satisfies  the 
statute  of  frauds;8  but  its  distinct  embodiment  in  a 


461  WARRANTY  IN  GENERAL.  \  315 

document  which  is  more  than  an  informal  memoran- 
dum or  receipt,  or  its  omission  therefrom,  excludes  oral 
evidence  of  its  existence  or  terms.9 

On  executory  contract.  There  may  be  a  valid  warranty 
when  the  contract  is  executory  as  well  as  when  it  is 
executed ; 10  though  it  has  been  inaccurately  declared 
that  a  warranty  is  an  incident  only  of  consummated  or 
completed  sales,  and  has  no  immediate  efficacy  in  an 
executory  agreement  for  a  sale.11 

1  See  Neave  v.  Arntz,  56  Wis.  174  ;  quoting,  Chanter  v.  Hopkins, 
4  Mees.  &  W.  404.    And  consult  Jones  v.  George,  01  Tex.  345  ;  43  Am. 
Bep.  280,  281 ;  Bagley  v.  Cleveland  Rolling  Mill  Co.  21  Fed.  Rep.  159  ; 
30  Alb.  L.  J.  490,  491;  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  439. 
Warranty  in  sales:  Dorr  v.  Fisher,!  Cush.  273.     And  see  Harleyv. 
Iron  Works,  66  Cal.  233  ;  19  The  Reporter,  109.    Warranty  on  sale  of 
chattel :   Gary  v.  Gruman,  4  Hill,  6'26.    Effect  of  custom  or  usag^,  and 
waiver  of  warranty :  2  Schouler  on  Personal  Property,  \\  326,  327. 

2  McFarland  v.  Newman,  9  Watts,  55 ;  34  Am.  Dec.  497,  499. 

3  Dorr  v.  Fisher,  1  Cush.  273 ;  as  cited,  Biddle  on  Chattel  War- 
ranties, p.  5,  §  4.    Representations  in  general  discussed :  Campbell  on 
Sales,  320. 

4  See  Boardman  v.  Spooner,  13  Allen,  361 ;  Langd ell's  Cases  on 
Sales,  610 ;  Morse  v.  Brackett,  98  Mass.  209 ;  Dorr  v.  Fisher,  1  Cush. 
273  ;  Bennett's  Benjamin  on  Sales,  p.  1037,  §  8S8,  n.  «,  so  citing  these 
cases.    Qualified  or  conditional  warranty :  See  §  322,  on  that  subject. 

5  See  Bennett's  Benjamin  on  Sales,  p.  636,  §  561,  and  p.  1059.  §  904, 
n.  n  ;  Waterbury  v.  Russell,  8  Baxt.  159 ;  Clark  v.  Bamer,  2  Lans.  67. 

6  Hughes?'.  Funston,  23  Iowa,  257.    Com  pare  Sherman  v.  Johnson, 
56  Barb.  59.    But  see  Rose  v.  Hurley,  39  Ind.  77. 

7  Lindsay  v.  Davis,  30  Mo.  406, 410 ;  Milk  v.  Rich,  15  Hun,  518.    Oral 
merged  in  written :  Brown  v.  Russell,  4  N.  E.  Rep.  (Ind.)  428. 

8  Northwood  v.  Rennie,  28  Up.  Can.  C.  P.  202 ;  3  Ont.  App.  37. 
And  see  Lamb  ?».  Craf ts^!2  Met.^Soji ;  Whitney  v.  Webster,  SS^Iud.  253. 

dell 

dell , 

48 ;  Frost  v.  Blanchard,  97  Mass.  155. 

9  2  Schouler  on  Personal  Property,  ?  336,  and  cases  cited.    And 
see  Campbell  on  Sales,  321 ;  Johnson  v.  Powers,  65  Cal.  17!) ;  Briggs  v. 
Hilton,  99  N.  Y.  517  ;  52  Am.  Rep.  63  ;  Mast  v.  Pearce,  58  Iowa,  57.) ;  43 
Am.  Rep.  125. 

10  PolhemusT?.  Heiman,  45  Cal.  573,  579 ;  Day  v.  Pool,  52  N.  Y.  416  ; 
11  Am.  Rep.  719  ;  Parks  v.  Morris  etc.  Co.  54  N.  Y.  588  ;  Brig??>.  Hilton, 
9<»  N.  Y.  517  ;  52  Am.  Rep.  63  ;  Kent  v.  Friedman,  3  N.  K.  Rep.  (N.  Y.) 
905  ;  Maxwell  v.  Lee,  27  N.  W.  Rep.  (Minn.)  1% ;  21  The  Reporter,  727. 
And  see  2  Schouler  on  Personal  Property,  g  323  ;  Gibson  v.  Stevens,  8 
How.  384.    Compare  Foot  v.  Bentley,  44  N.  Y.  166 ;  4  Am.  Rep.  652. 

11  Osborn  v.  Gantz,  60  N.  Y.  540.    And  see  2  Smith's  Lead.  Cos.  33 ; 
Harley  v.  Iron  Works,  66  Cal.  2;i3 ;  19  The  Reporter,  10J. 


§  316  WARRANTY  IN  GENERA!,.  462 

g  316.  Kinds.  —  Express  and  implied.  A  warranty 
may  be  express  or  implied.1  Express  warranty  arises 
where  one  party  to  a  contract  of  sale  specially  under- 
takes to  make  sure  to  the  other  that  the  thing  sold  is  as 
represented  ; 2  but  an  implied  warranty  is  a  guaranty 
which  the  law  deduces  as  an  inevitable  consequence  of 
the  contract,  even  if  there  has  been  no  special  under- 
taking in  the  matter.3  An  express  warranty  may  ex- 
clude any  implied  warranty ; 4  and  an  implied  warranty 
will  not  cover  unforeseen  contingencies.5 

Warranty  of  title.  In  this  country  there  is  an  implied 
warranty  of  title  from  the  mere  sale  of  a  chattel,  at  least 
if  it  be  in  the  seller's  possession  ;6  and  in  England  the 
tendency  of  the  recent  cases  has  been  considered  to 
decidedly  favor  an  implied  affirmation  of  ownership, 
unless  the  transfer  is  merely  of  the  seller's  interest.7 

Warranty  of  quality.  In  the  absence  of  fraud8  or 
express  warranty,9  the  common-law  rule,10  under  the 
maxim  caveat  emptor,  which  throws  all  risks  of  qualify 
upon  the  purchaser  of  a  specific  chattel,11  is  that  the 
seller  of  personal  property  is  subject  to  no  implication 
of  a  warranty  of  quality;12  but  the  exceptions  to  the 
rule  are  extended  to  admit  various  warranties  implied 
from  the  nature  and  circumstances  of  the  sale,  as  those 
of  correspondence  with  sample  or  description,  fitness 
for  particular  purposes,  merchantable  character,  against 
latent  defects,  etc.13 

1  See  Neave  r.  Arntz,  56  Wis.  174  ;  Osgood  r.  Lewis,  2  Har.  &  G. 
495;  18  Am.  Dec.  317,  318;  Borrekins  v.  Bevan,  3  Rawle,  2t;  23  Am. 
Dec.  85. 

2  See  citations  in  next  note.    In  express  warranties  there  is  a 
direct  stipulation ,  or  something  equivalent  to  it :  Borrekins  v.  Bevan, 
3  Bawle,  23  ;  23  Ani.  Dec.  85. 

3  2  Schouler  on  Personal  Property,  ?  328.    And  see  2Bouvier  Law 
Diet.  (14th  ed.)  652  ;  Biddle  on  Chattel  Warranties,  p.  3,  ?  3  ;  quoting, 
Otts  v.  Alderson,  10  Smedes  &  M.  476,  481 ;  Osgood  r.  Lewis,  2  liar.  & 
G.  41)5  ;  18  Am.  Dec.  317,  making  classification.    Inference  of  warranty 
from  words,  acts,  and  circumstances:  2  Schouler  on  Personal  Prop- 
erty, l\  337,  343 ;  Terhune  v.  Dever,  36  Ga.  643.    Implied  warranties 


463  WARRANTY  IN  GENERAL.  g  317 

are  conclusions  and  inferences  of  law,  from  facts  which  are  admitted 
or  proved  before  the  jury  :  Borrekins  v.  Bevan,  3  Ravvle,  23  :  23  Am. 
Dec.  85. 

4  See  McGraw  v.  Fletcher,  35  Mich.  104  ;  Jackson  v.  Langston,  ri 
Ga.  392  ;  Lainer  v.  Auld,  1  Murph.  138  ;  3  Am.  Dec.  6*0.    But  com  pan* 
Houston  v.  Gilbert,  3  Brev.  63  ;  5  Am    Dec.  542  ;  Merriam  ?».  Field,  24 
Wis.  640;  Boothby  v.  Scales,  27  Wis.  62fi,  633.    Express  warranty,  in 
writing,  intent,  evidence,  uncertain  expressions,  etc.  ;  2  Schouler  on 
Personal  Property,  \\  335-337.    Rules  01  construction :  Campbell  on 
Sales,  322. 

5  See  Mann  v.  Everston,  32  Ind.  355. 

6  See  Whitney  v.  Heywood,  6  Cush.  86  ;  Scranton  v.  Clark,  39 
N.  Y.  220  ;  Long  v.  Hickingbotham,  28  Miss.  772  ;  Fletcher  v.  Drath, 
66  Mo.  126;  2  Kent  Com.  478  ;  Story  on  Sales,  g  367  ;  2  Schouler  on 
Personal  Property,  ?  378  ;  Biddle  on  Chattel  Warranties,  \\  236-243 ; 
quoting,  Byrnside  v.  Burdett,  15  W.  Va.  502  ;  People's  Bank  v.  Kurtz, 
{>!)  Pa.  St.  344  ;  44  Am.  Rep.  192  ;  Shattuck  v.  Green,  104  Mass.  45.    And 
consult  note  to  Scott  v.  Hix,  2  Sneed,  192  ;  62  Am.  Dec.  46:Mf>5 ;  note  to 
Reynolds  v.  Palmer,  21  Fed.  Rep.  457  ;  Johnson  v.  Powers,  65  Cal.  173; 
Baker  r.  McAllister,  G  Pac.  Rep.  (Wash.  T.)  581. 

7  See  Eichholz  v.  Bannister,  17  Com.  B.  N.  S.  708  ;  Chapman  v. 
Speller,  14  Q.  B.  621  ;  Bennett's  Benjamin  on  Sales,  \  639  ;  Campbell 
on  Sales,  328;  Biddle  on  Chattel  Warranties,  §£  232,  2.'J3 ;  note  to 
Reynolds  v.  Palmer,  21  Fed.  Rep.  456;  note  to  Soott  v.  Hix,  62  Am. 
Dec.  460.    And  consult  Page  v.  Cowasjee,  Law  R.  1  P.  C.  127  ;  Bagneley 
v.  Havvley,  Law  R.  2  Com.  P.  625.      Compare  Sims  r.  Marryat,  17 
Q.  B.  281 ;  Morley  v.  Attenborough,  3  Ex.  500.    Canadian  vi»\vs:  See 
Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  598,  reviewing  English  author- 
ities ;  Somers  v.  O'Donohue,  9  Up.  Can.  C.  P.  208  ;  Biddle  on  Chattel 
Warranties,  #§  234,  235  ;  note  to  Scott  v.  Hix,  62  Am.  Dec.  463. 

8  See  Irving  v.  Thomas,  18  Me.  418  :  Otts  v.  Alderson,  10  Smedes 
&  M.  476. 

9  See  Warren  v.  Phila.  Coal  Co.  83  Pa.  St.  437. 

10  See  Warren  Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547 ; 
5  Atl.  Rep.  253,  fully  discussing  subject. 

11  See  Bowman  v.  Clemmer,  50  Ind.  10. 

12  See  Warren  v.  Phila.  Coal  Co.  83  Pa.  St.  437  ;  2  Schouler  on  Per- 
sonal Property,  $%  322,  346  ;  Story  on  Sales,  §  349. 

13  See  Jones  v.  Just,  Law  R.  3  Q.  B.  \?7  ;  CM*s  ?>.  Alderson,  10  Smedes 
<fe  M.  476,  481 ;  French  v.  Vining,  102  Mass.  1..5  ;  Bryant  v.  Pomln  r,  45 
Vt.  487;  Bowman  v.  Clemmer,  50  Ind.  10;  Bennett's  Benjamin  on 
Sales,  g  644  ;  2  Schouler  on  Personal  Property,  U  3-2»  34;].  -Biddle  ou 
Chattel  Warranties,  p.  3,  §  3. 

\  317 .  Form  and  requisites .  —  Affirmation  and  intention. 
An  affirmation  at  the  time  of  sale  is  a  warranty,  pro- 
vided it  appears  in  evidence  to  be  so  intended.1  And 
the  rule  of  law  laid  down  by  all  the  authorities  is  said 
to  be  that  any  affirmation  of  the  quality  of  the  article, 
made  at  the  time  of  the  sale,  intended  as  an  assurance 
of  the  fact  stated,  and  relied  on  and  acted  on  by  the  pur- 
chaser, will  constitute  an  express  warranty.2 


§  318          WARRANTY  IN  GENERAL.  464 

Mode  of  expression.  No  particular  form  of  words  is 
necessary  to  constitute  an  express  warranty,  and  the 
word  "warrant,"3  though  customarily  employed,  need 
not  be  used  *  at  all.5 

Time  of  making,  and  operation.  A  warranty  need 
not  be  made  at  the  time  the  sale  is  concluded,  but  may 
consist  of  prior  statements  of  sufficient  scope,  if  incor- 
porated in  the  bargain,  or  may  be  made  after  the  sale, 
if  upon  a  new  consideration,  and  it  may  cover  a  future 
event/ 

1  Potomac  etc.  Co.  v.  Harlan  etc.  Co.  4  Atl.  Hep.  (Md.)  903  ;  citing, 
Gross  v.  Gardner,  3  Mod.  2<51  ;  Pasley  v.  Freeman,  3  Term  Rep.  57; 
Osgood  v.  Lewis,  2  Har.  <fe  G.  518  ;  18  Am.  Dec.  317.    And  see  Mason  v. 
Chappell,  15  Gratt.  572;  Figge  v.  Hill,  61  Iowa,  430,432;  Halliday  v. 
Briggs,  15  Neb.  219, 222, 223. 

2  Crenshaw  v.  Slye,  52  Md.  146  ;  as  cited,  Potomac  etc.  Co.  v.  Hr.r- 
lan  etc.  Co.  4  Atl.  Rep.  (Md.)  "03.    And  see  Story  on  Sales,  go.:?; 
Mason  v.  Chappell,  15  Gratt.  572;  BHdle  on  Chattel  Warranties,  p. 
37,  §  35,  and  p.  38,  |  36  ;  quoting,  Henshaw  v.  Robins,  9  Met.  S3  ;  43  Am. 
Dec.  367. 

3  See  Warren  v.  Philadelphia  Coal  Co.  83  Pa.  St.  440. 

4  See  Henshaw  v.  Robins,  9  Met.  83  ;  43  Am.  Dec.  367. 

5  2  Srhouler  on  Personal    Property,  §  331 ;    citing  Callanan    v. 
Brown,  31  Iowa,  333.    And  see  Towell  v.  Gatewood,  2  Scam.  67  ;   33 
Am.  Dec.  437, 440  ;  1  Parsons  on  Contracts,  463 ;  Story  on  Sales,  g  357  ; 
Biddle  on  Chattel  Warranties,  p.  37,  §  35,  and  p.  38,  §36;  Ncavo  v. 
Arntz,  56  Wis.  174,  176  ;  Gregory  v.  Underbill,  6  Lea,  207,  210  ;  Wer,t 
Republic  Mg.  Co.  v.  Jones,  108  Pa.  St.  55;   19  The  Reporter,  2"! ; 
Warder  v.  Bowen,  31  Minn.  335,  336. 

6  See  Wilmot  v.  Hurd,  11  Wend.  5S4  ;  Driesbach  v.  Lewisburg 
Bridge  Co.  81  *Pa.  St.  177 ;  Congar  v.  Chamberlain,  14  Wis.  2C3 ;  as 
cited,  2  Schouler  on  Personal  Property,  \  832.    Consult,  also,  Biclrllo  on 
Chattel  Warranties,  \\  37-42.     And  compare  Gregory  v.  Underbill,  6 
Lea,  207-212  ,  Baldwin  v.  Daniel,  69  Ga.  732,  791  ;  Iloult  v.  Baldwin,  07 
C'al.  610;  8  Pac.  R^p.  440.    Continuance  of  warranty  :  See  Chapman 
v.  Gwy ther,  Law  R.  1  Q.  B.  463 ;  Craig  v.  Miller,  22  Up.  Can.  C.  P.  3-13 ; 
Bristol  v.  Tracy,  21  Barb.  236. 

§  318.  Expressions  of  opinion,  otc.  —  Distinguished 
from  assertions  of  fact.  There  is  a  distinction  as  to  the 
legal  effect  of  expressions  when  used  in  reference  to  a 
matter  of  fact,  and  when  used  as  indications  of  opinion.1 
And  in  order  to  create  a  warranty,  the  seller  must  es- 
sentially assert  a  fact  upon  which  he  is  especially  in- 
formed, and  the  buyer  is  ignorant,  and  not  merely 


465  WARRANTY   IN  GENERAL.  \   319 

state  an  opinion2  upon  a  matter  wherein  the  buyer 
should  exercise  his  own  judgment.3 

Dealer's  talk,  etc.  Hence,  warranties  do  not  arise 
from  the  simple  commendation  of  the  articles  sold,4  or 
vague  assertions  as  to  their  value,  quality,  goodness, 
soundness,  etc.,  or  other  exaggerated  oral  statements 
or  recommendations,  often  classed  as  "  dealer's  talk," 
and  deemed  to  amount  to  no  more  than  representa- 
tions of  the  worth,  condition,  or  characteristics  of  the 
articles.5 

Province  of  court  and  jury  In  general,  when  the 
evidence  is  such  as  to  leave  no  doubt  of  the  legal  force 
of  the  language  of  the  representation,  the  court  may 
and  should  declare  its  effect;6  but  otherwise  it  should 
be  left  to  the  jury  to  determine.7 

1  Reed  v.  Hastings,  61  111.  266.    And  see  Mason  v.  Chappell,  15 
Gr..tt.  572. 

2  Use  of  word  "  choice  "  discussed  :  Reynolds  v.  Palmer,  21  Fed. 
Rep.  433,  435  ;  Forcheimer  v.  Stewart,  65  Iowa,  594  ;  54  Am.  Rep.  30. 

3.  See  Tabor  ?'.  Peters,  74  Ala.  90  ;  40  Am.  Rep.  804,  805,  806,  discuss- 
i-Tg  distinction  ;  Reed  v.  Hastings,  61  111.  266 ;  Hawkins  v.  Pemberton, 
51  N.  Y.  198  ;  10  Am.  Rep.  595  ;  Bennett's  Benjamin  on  Sales,  \  613  ; 
Mason  v.  Chappell,  115  Gratt.  572  ;  as  quoted,  Biddle  on  Chattel  War- 
ranties, \  44  ;  Towell  v.  Gatewood,  2  Scam.  22  ;  33  Am.  Dec.  437,  440  ; 
Bartlett  v.  Hoppock,  34  N  Y.  118  ;  88  Am.  D^c.  428,  429;  Hall  Way  v. 
Briggs,  15  Neb.  219,  221 ;  Linn  v.  Gunn,  23  N.  W.  Rep.  (Mich.)  84. 

4  See  Forcheimer  v.  Stewart.  65  Iowa,  594  ;  54  Am.  Rep.  30 ;  Tabor 
?'.  Pet'-rs,  74  Ala.  90,  49  Am.  Rep.  804,  805;  Reynolds  v.  Palmer,  21 
Fed.  Rep.  433,  435. 

5  See  2  Schouler  on  Personal  Property,  \  329,  and  cases  cited  ; 
Story  on  Sales,  \\  300,  360  6;  Hall  Way  v.  Briggs,  15  Neb.  219,  220,  222  ; 
2  Corbin's  Benjamin  on  Sales,  §  933,  n. ;  Tewksbury  v.  Bennett,  31 
Iowa,  83;  McGrew  v.  Forsythe,  31  Iowa,  179'  Byrne  v.  Jan  sen,  50  Cal. 
624  ;  Fuuntleroy  v.  Wilcox,  80  111.  477  ;  Mason  v.  Chappell,  15  Grntt. 
572;  Hogins  v.  Plympton,  11  Pick.  97;  Reynolds  v.  Palmer,  21  Fed. 
Rep.  433,  435. 

6  Halliday  v.  Briggs,  15  Neb.  219,  223,  whence  paragraph  derived. 
And  consult  Biddle  on  Chattel  Warranties,  \\  83,  84. 

7  See  Whitney  v.  Button,  10  Wend.  412  ;  Tuttle  v.  Brown,  4  Gray, 
457  ;  64  Am.  Dec.  SO ;  Morrill  v.  Wallace,  9  N.  H.  111. 

I  313 .  Warranties  by  agents.  —  Authority  from  custom. 
As  an  agent  to  sell  is  presumed  to  have  authority  to  do 
whatever  is  usual  in  the  course  of  the  business,  he  may 


§    319  WARRANTY   IN   GENERAL.  466 

expressly  warrant,1  if  it  be  the  custom  of  a  seller  to  do 
so  in  like  circumstances.2 

Warranties  implied  from  mode  of  sale.  And  every 
warranty  which  the  law  necessarily  implies  from  a  par- 
ticular mode  of  sale,  as  of  correspondence  of  bulk  with 
sample,3  or  of  quality  of  goods  supplied  to  order,4  comes, 
as  a  component  part  of  the  sale,  within  the  authority  to 
make  the  sale.5 

Warranties  by  special  agents.  But  an  agent  whose 
powers  are  special  or  restricted  cannot  bind  his  principal 
by  an  express  warranty  for  which  he  is  unable  to  show 
clear  authority  ; 6  and  this  limitation  applies  so  as  to  in- 
validate a  warranty  given  by  an  auctioneer,  sheriff,  or 
any  mere  broker ; 7  or  by  the  servant  or  employee  of  a 
private  owner  of  a  horse,8  as  distinguished  from  the 
agent  of  a  general  horse  dealer,  who  has  implied  author- 
ity to  bind  his  principal  by  a  warranty,  though  secretly 
instructed  not  to  warrant.9 

Oral  and  written  warranty.  Where  an  agent  selling 
goods  for  his  principal  orally  warrants  their  quality  for 
himself,  and  as  agent  procures  the  making  of  a  contract 
of  purchase  in  writing,  containing  a  warranty  of  his 
principal,  the  former  warranty  is  not  merged  in  the 
latter,  but  is  a  separate  contract,  binding  the  agent  per- 
sonally, and  admissible  in  evidence  in  an  action  on  one 
of  the  price  notes  made  payable  to  the  agent.10 

1  Evidence  of  authority  to  warrant  durability :  Smilie  v.  Hobbs, 
5  Atl.  Rep.  (N.  H.)  711. 

2  L  Schouier  on  Personal  Property  §  324  ;  citing,  Brady  v.  Todd,  9 
Com.  B.  N.  S.  592;  Dingle  v.  Hare,  7'  Com.  B.  N.  S.  145;  Howard  v. 
Sheward,  Law  R.  2  Com.  P.  148 ;  Bryant  v.  Moore,  26  Me.  84  •  45  Am. 
Dea  96;  Randall  v.  Keillor,  60  Me.  37  ;  11  Am.  Kep.  10!);  Williamson 
v.  Connaday  3  Ired.  349;  Upton  ?>.  Suffolk  County  Mills,  11  Cush.  586, 
59  Am.  Dec.  163;  Boothby  v.  Scales.  27  Wis.  626  ;  Story  on  Agency, 
??  102,  443  ;  Bennett's  Benjamin  on  Sales,  \  024  ;  Story  on  Sales,  \  350. 
And  consult  Biddle  on  Chattel  Warranties,  §  15 ;  2  Corbin's  Benjamin 
on  Sales,  §  945,  n.  16 ;  citing,  Herring  v.  Skaggs,  62  Ala.  180, 185  ;  34  Am. 
Rep.  4. 

3  See  Andrews  v,  Kneeland.  6  Cowen,  354  ;  Schuchardt  v,  Allen,  1 
Wall,  359. 


467  WARRANTY  IX  GENERAL.          g  320 

4  Se^  Boothby  v.  Scales,  27  Wis.  626. 

5  2  Schouler  on  Personal  Property,  ?  324 ;  citing,  also,  Upton  t». 
Suffolk  County  Mills,  11  Gush.  580;  59  Am.  Dec.  1(«  ;  Story  on  Agency, 
g  1U2 ;  Palmer  r.  Hatch,  46  Mo.  585.    And  consult  Story  on  Sales,  §  330. 
p.  403,  n.  3  ;  Cooley  v.  Perrine,  41  N.  J.  L.  322 ;  32  Am.  Rep.  210. 

6  2  Sohouler  on   Personal  Property,  §  324.    And  see  Biddle  on 
Chattel  Warranties,  ?  15 ;  Story  on  Sales,  §  350  ;  Decker  y.  Fredericks, 
47  X,  J.  L.  469.    Compare  Deming  v.  Chase,  48  Vt.  382. 

7  See  Bartholomew  t>.  Warner,  32  Conn.  98;  Blood  ?».  French,  9 
Gray,  197;  Dodd  v.  Farlow,ll  Allen, 426;  The  Monte  Allegre,!)  Wheat. 
644  ;  Mink  v.  Jarvis,  8  Up.  Can.  Q.  B.  397  ;  13  Up.  Can.  Q.  B.  84. 

8  See  Brady  v.  Todd,  fl  Com.  B.  N.  S.  592;  Cooley  <'.  Perrine,  41 
N.  J.  L.  322  ;  32  Am.  Rep.  210 ;  S.  C.  42  N.  J.  L.  623  ;  Wilcox  v.  Hender- 
son, 64  Ala.  5S5  ;  Hngueley  v.  Norris,  65  Ga.  666 ;  Meister  v.  The  Cleve- 
land Dryer  Co.  11  111.  App.  227  ;  Bennett's  Benjamin  on  Sales,  §  6°5  ; 
Campbell  on  Sales,  324.    Otherwise  in   England  if  sold  at  a  fair : 
Brooks  v.  Hassall,  49  L.  T.*N.  S.  569.    And  see  18  Cent.  L.  J.  223. 

9  Howard  v.  Sheward,  Law  R.  2  Com.  P.  148.    And  see  Bryant  v. 
Moore,  26  Me.  84,  87  ;  45  Am.  Dec.  96. 

10    Shordan  v  Kyler,  87  Ind.  38. 

$  320.  Patent  defects.  —  Known  or  patent  defects  A 
general  warranty  does  not  ordinarily  include  defects 
which  are  known  to  the  buyer,  or  patent  defects  which 
are  apparent  upon  mere  inspection,  and  demand  no 
special  skill  for  their  discovery.1  And  it  has  even  been 
held  that  where  a  fire-engine  is  warranted  to  be  as  effi- 
cacious for  all  the  purposes  of  such  an  apparatus  as 
any  in  a  specified  section  of  the  country,  there  is  no 
breach  of  warranty  if  it  is  inferior  to  others  larger  and 
more  costly,  where  such  inferiority  is  patent  to  every 
ordinary  observer  3 

Need  of  skill,  etc.  But  it  seems  to  be  now  well  settled 
that  the  rule  of  law  which  exempts  a  seller  from  lia- 
bility upon  a  general  warranty,  like  that  of  soundness, 
where  the  defect  is  known  or  perfectly  visible  and 
obvious  to  the  unaided  senses,  does  not  extend  to  an 
apparent  defect  whose  true  nature  and  extent  can  be 
determined  only  with  the  aid  of  skill,  experience,  or 
judgment.3 

Artifice  to  conceal  defects,  etc.  Nor  must  the  seller 
claiming  exemption  have  resorted  to  artifice  to  conceal 


g   320  WARRANTY  IX   GENERAL,.  468 

the  defects,  or  to  throw  the  purchaser  off  his  guard  and 
arrest  thorough  examination.1 

Covering  patent  defects.  So  the  warranty  may  be 
framed  in  such  a  way  as  to  insure  against  a  patent  de- 
fect as  well  as  against  one  not  manifest.5  And  where 
the  seller  of  a  kiln  of  brick  warranted  them  "  to  be  good 
brick  and  all  right,"  and  it  turned  out  that  some  of  the 
bricks  beneath  the  exterior  were  imperfectly  burned, 
but  that  the  4  cold  spot "  where  this  was  the  case  could 
not  have  been  discovered  by  the  buyer  without  going 
on  top  of  the  kiln  and  removing  the  bricks  therefrom, 
it  was  held  that  the  buyer  could  rely  upon  the  warranty 
as  the  basis  of  a  counter-claim  for  damages  in  an  action 
on  the  price  note.6 

Liability  for  latent  defects.  But  to  render  the  seller 
liable  for  latent  defects  unknown  to  him  in  a  specific 
thing  sold,  there  should  be  clear  evidence  of  an  express 
warranty  on  his  part.7 

Patent  churn.  Where  on  the  sale  of  a  patent  right  to 
a  churn,  manufactured  by  the  seller,  he  exhibited  a 
sample  churn,  which  was  inspected  by  one  of  the  buy- 
ers, and  stated  that  it  would  produce  butter  in  from  one 
to  five  minutes,  that  it  could  be  operated  lay  a  child  five 
or  six  years  old,  that  it  \vas  made  of  juniper-wood,  and 
that  the  dasher  was  nickel- plated,  whereas  in  fact  it 
would  not  produce  butter  in  less  than  ten  minutes,  was 
too  heavy  for  children  to  work  it,  and  was  made  of  white 
ash,  painted,  while  the  dasher  was  of  polished  iron, 
it  was  held  that  the  representations  made  amounted  to 
a  warranty,8  and  that  the  court  could  not  pronounce 
the  discrepancies  so  plain  and  obvious  on  inspection 
that  they  were  not  covered  by  the  warranty  given  by 
the  manufacturer.9 

1  See  Pinney  v.  Andrus,  41  Vt.  631 ;  Gaylord  Man.  Co.  v.  Allen,  53 
N.  Y  515;  McCormick  v.  Kelly,  28  Mi'nn.  185;  Vandewalker  v. 
Osmer,  65  Barb.  556,  561 ;  Fox  v.  Emerson,  27  Hun,  355  ;  Schuyler  v. 


469  WARRANTY  IN  GENERAL.  \   321 

Russ,  2  Caines,  202  ;  2  Schouler  on  Personal  Property,  ?  333 ;  Story  on 
Sales,  ?  3->l ;  Bennett's  Benjamin  on  Sales,  g  616,  2  Corbin's  Benja- 
min on  Sales,  §  938 ;  Biddle  on  Chattel  Warranties,  \\  79,  80.  Consult, 
further,  Tabor  v.  Peters,  74  Ala.  90  ;  49  Am.  Rep.  804,  807,  SOS.  And 
compare  Vates  ?'.  Cornelius,  69  Wis.  615 ;  Meickley  v.  Parsons,  (k> 
Iowa,  63  ;  55  Am.  Rep.  261,  262. 

2  President  etc.  v.  Wadleigh,  7  Blackt  102 ;  41  Am.  Dec.  214. 

3  See  Pinney  v.  Andrus,  41  Vt.  631 ;  Brown  v.  Bigelow,  10  Allen, 
242  ;  Margetson  v.  Wright,  7  Bing.  603  ;  8  Bing.  454  ;  Tye  v.  Flnmprt,  3 
Camp.  462  ;  Henshavv  v.  Robins,  9  Met.  83;  43  Am.  Dec.  367;  Ben- 
nett's Benjamin  on  Silos,  \\  616-618;  Story  on  Sales,  §  355;  Fletcher 
v.  Young,  69  Ga.  591,  593,  594. 

4  See  Ch^dsey  v.  Green,  24  Conn.  562,  573;  Pinney  v.  Andras,  41 
Vt.  031  ;  Beals  v.  Olmstead,  24  Vt.  114  ;  58  Am.  Dec.  130;  2  Schouler  0:1 
Personal  Property,  £  333  ;  Bennett's  Benjamin  on  Sales,  §  616,  n.  e  ;  2 
Corbin's  Benjamin  on  Sales,  §  933,  n.  9 ;  Kenner  v.  Harding,  85  111. 
264 ;  28  Am.  Rep.  615  (mul^  shown  in  dark  stall) ;  Tabor  v.  Peters,  74 
Ala.  90 ;  49  Am.  Rep.  804,  808, 

5  See  Marshall  ?».  Drawhorn,  27  Ga.  275,  279 ;  McCormick  v.  Kelly, 
28  Minn.  135;  2  Corbin's  Benjamin  on  Sales,  §  038,  n.  10;  citing,  also, 
Shewalter  v.  Ford,  34  Miss.  417,  422  ;  Bank:  of  Kansas  City  v.  Grind- 
staff,  45  Ind.  158  ;  Brown  v.  Bigelow,  10  Allen,  242,  244  ;  Hill  v.  North, 
34  Vt.  604.    Consult,  also,  2  Schonler  on  Personal  Property,  g  341 ; 
Bennett's  Benjamin  on  Sales,  §616,  n.  e;  Biddle  on  Chattel  War- 
ranties, M  81,  82  ;  Meickley  v.  Parsons,  66  Iowa,  63 ;  55  Am.  Rep.  621, 
622. 

6  Meickley  v.  Parsons,  66  Iowa,  63 ;  55  Am.  Hep.  621. 

7  See  Kingsbury  v.  Taylor,  29  Me.  508 ;  Frazier  v.  Harvey,  34 
Conn.  4K9;  50  Am.  Dec.  607  ;  Lord  v.  Grow,  39  Pa.  St.  88  ;  80  Am.  Dec. 
504  ;  Hadley  v.  Clinton  etc.  Co.  13  Ohio  St.  502  ;  82  Am.  Dec.  454  ; 
Parkinson  y.  Lee,  2  East,  314  ;  so  cited,  2  Schouler  on  Personal  Prop- 
erty, ?  324. 

8  Tabor  v.  Peters,  74  Ala.  90  ;  49  Am.  Rep.  804,  806  ;  citing  follow- 
ing cases  concerning  statements  on  sales  of  patents  :   Chalmers  v. 
Harding,  17  L.  T.  N.  S.  571;  Elkins  »».  Kenyon,  34  Wis.  93;  Nelson 
?\  Wood,  62  Ala.  195  ;  Bigler  v.  Thicking^r,  35  Pa.  St.  279,  noted  as  a 
strikingly  similar  case  ;  Rose  v.  Hurley,  39  Ind.  77  ;  Allen  v.  Hart,  72 
111.104. 

9  Tabor  v.  Peters,  74  Ala,  90  ;  49  Am.  Rep.  804,  807. 

§  321.  Soundness  or  other  qualities  of  animals.  —  Lule 
concerning  unsoundness.  In  regard  to  a  warranty  using 
the  word  "sound"  in  the  sale  of  horses,  and  who-o 
scope  may  depend  upon  local  usage  and  special  circum- 
stances, the  rule  as  to  unsoundness  is,1  that  a  hor><-  is 
unsound  when  it  is  afflicted  with  any  disease,  or  has 
undergone  any  alteration  of  structure  which  citlu-r 
presently  does,  or  in  its  ordinary  progress  eventually 
will  diminish  the  natural  usefulness  of  the  animal,  so 
NEWMAKK  SALES.— 4O. 


§    321  WARRANTY   IN   GENERAL.  470 

as  to  make  it  less  than  reasonably  fit  for  present  use  in 
work  of  any  description.2 

Permanence  of  injury,  etc.  It  is  no  longer  deemed 
necessary3  that  the  disease  calculated  to  cause  un fitness 
for  use  or  diminished  usefulness  should  be  of  a  per- 
manent character ; 4  though  the  rule  denning  unsound- 
ness  does  not  appear  to  extend  to  a  merely  temporary 
and  curable  injury,  which  exists  at  the  date  of  sale, 
and  does  not  really  disqualify  the  animal  for  present 
service.5 

Stumbling  horse,  etc.  A  warranty  that  a  horse  is 
sure-footed  and  all  right  every  way,  shape,  or  manner, 
except  only  stumbling  from  temporary  causes,  is  broken 
if  he  has  such  an  organic  defect  as  that  his  stumbling 
can  be  avoided  only  by  a  peculiar  mode  of  shoeing, 
which  the  buyer,  using  reasonable  diligence,  cannot 
discover.6 

Construction  of  phraseology.  Effect  should  be  given 
to  any  qualification  or  limitation  in  the  phraseology  of 
a  warranty  of  soundness  or  other  qualities  of  animals,7 
and  precise  wording  is  requisite  to  raise  a  warranty  out 
of  expressions  concerning  the  age,  breed,  previous  use, 
etc.,  of  the  animal.8  Where  a  horse  that  was  partially 
blind  was  sold  with  a  warranty,  that  "  he  was  all  right, 
except  that  he  would  sometimes  shy,"  it  was  held  that 
there  was  not  a  fatal  variance  between  the  evidence  of 
such  a  warranty  and  an  allegation  that  he  was  war- 
ranted to  be  sound.9 

Expressions  covering  character,  etc.  Where  an  animal 
is  warranted  "sound  and  right,"  "sound  and  kind," 
"sound  and  perfect,"  "all  right  in  every  respect,"  etc., 
these  phrases,  which  should  be  construed  according  to 
their  natural  import,  would  seem  in  substance  to 
superadd  a  warranty  of  good  character  to  that  of  good 
physical  condition,  though  it  would  always  be  a  fair 


471  WARRANTY  IN  GENERAL.  \  322 

subject  of  inquiry  how  far  vicious  behavior  on  a  horse's 
part  was  directly  traceable  to  bodily  unsound  ness.10 

1  See  Kenner  v.  Harding,  25  111.  264 ;  28  Am.  Rep.  615,  617  ;  2 
Schouler  on  Personal  Property,  §  339 ;  Story  on  Sales,  g  362 ;  Bennett's 
Benjamin  on  Sales,  ?6I'J;  2  Corbin's  Benjamin  on  Sales,  \  *MO  ;  (.'amp- 
bell  on  Sales,  323;  Biddle  on  Chattel  Warranties,  p.  55,  \  62  ;  note  to 
Roberts  y.  Jenkins,  53  Am.  Dec.  173,  fully  discussing  subject. 

2  See  Coates  v.  Stevens,  2  Moody  &  R.  157  ;  Kiddell  v.  Burnard,  9 
Mees.  &  W.  663  ;  Holliday  v.  Morgan,  1  El.  &  E.  1 ;  Roberts  v.  Jen- 
kins, 21  N.  H.  116  ;  53  Am.  Dec.  16J  ;  Schurtz  v.  Kleinmeyer,  36  Iowa, 
392 ;  Kenuer  v.  Harding,  85  111.  264  ;  28  Am.  Rep.  615,  617. 

3  See  Kiddell  v.  Burnard,  9  Mees.  &  W.  608. 

4  As  held  in  Bolden  v.  Brogden,  2  Moody  &  R.  113.    Time  of  ex- 
istence of  defects  :  See  note  to  Roberts  v.  Jenkins,  53  Am.  Dec.  175  ; 
Finley  v.  Quirk,  9  Minn.  194  ;  86  Am.  Dec.  93. 

5  2  Schouler  on  Personal  Property,  §  339  ;  citing,  Roberts  v.  Jen- 
kins, 21  N   H.  116  ;  53  Am.  Dec.  169 ;  Brown  v.  Bigelow,  10  AJlen,  242. 
Defects  constituting  unsoundness  :  See  Hanover  on  Horses,  pp.  57, 
69  ;  Oliphant's  Law  of  Horses  (ed.  1882),  p.  70,  et  seq.  pp.  457, 461,  Appx.  ; 
Thompson's  Law  of  the  Farm,  §133 ;  Bennett's  Benjamin  on  Sales, 
{  620  ;  2  Corbin's  Benjamin  on  Sales,  §  941 ;  2  Schouler  on  Personal 
Property,  9  341,  p.  338,  n.  2  ;  1  Chitty  on  Contracts  (llth  Am.  ed.),  655, 
n.  r  ;  Biddle  on  Chattel  Warranties,  n.  55,  §  63,  and  p.  57,  §  64  ;  note  to 


6  Morse  v.  Pitman,  4  Atl.  Rep.  (N.  H.)  880.     Effect  of  receipt 
guaranteeing  a  pair  of  horses  to  be  perfectly  sound  and  without 
blemish,  but  stating  that  one  of  them  now  has  a  cold  or  little  dis- 
temper :  Fletcher  v.  Young,  69  Ga.  691. 

7  S^e  \Vason  v.  Rowe,  16  Vt.  525 ;  Chapman  v.  Gwyther,  Law  R.  1 
Q.  B.  404  ;  Bywater  v.  Richardson,  1  Ad.  &  E.  508. 

8  See  Budd  v.  Fairmaner, 8  Bing.  48  ;  Richardson  v.  Brown ,  1  BIng. 
344  ;  Willard  ?».  Stevens,  2 1  N.  H.  271.    Basis  of  paragraph  :  2  Schculer 
on  Personal  Property,  \  339. 

9  Kingsley  v.  Johnson,  49  Conn.  462. 

10  2  Schouler  on  Personal  Property,  §  340  ;  citing,  Walker  v.  Hois- 
ington,43  Vt.  608,  and  other  cases  next  noted.  Warranty  not  pro- 
tecting against  consequences  of  animals'  pregnancy  :  See  Whitney  v. 
Taylor,  54  Barb.  5T.6 ;  Brown  v.  Bigelow,  10  Allen,  242.  Warranty 
that  horse"  well  broke"  :  Bodurthav.  Phelon,2  Allen,  347.  Inference 
of  warranty  without  express  phraseology:  See  Cook  v.  Mosely,  13 
Wend.  277.  Fitness  for  use  in  harness :  Smith  r.  Justice,  13  Wis.  600. 
And  see  Bodurtha  v.  Phelon,  2  Allen,  347.  Defects  open  or  latent, 
etc.:  2  Rchouler  on  Personal  Property,  #  341 ;  citing,  Brown  r.  P.ig"- 
low,  10  Allen,  242;  Liddard  v.  Kain,  2  Bing.  183  ;  Margetson  v.  Wright, 
7  Bing.  603  ;  8  Bing.  4M  ;  Chadsey  v.  Greene,  24  Conn.  5G2 ;  Mulvany  v. 
Rosenberger,  18  Pa.  St.  203. 

I  322.  Qualified  or  conditional  warranty.  —  In  general. 
A  statement  which  can  be  construed  as  constituting  a 
warranty,  may  be  found  to  amount  to  no  more  than  a 
conditional  or  qualified  warranty  j1  as  where  there  are 
modifying  expressions  in  regard  to  the  soundness  of 


\   322  WARRANTY  IN  GENERAL.  472 

animals ; 2  and  in  general,  effect  must  be  given  to  all 
restrictions  and  limitations  to  which  any  express  war- 
ranty is  clearly  subjected.3 

Rules  of  sale  and  limitations  of  continuance.  Thus  an 
absolute  warranty  may  prove  to  be  modiried  by  general 
rules,  which  the  seller  promulgates  as  applied  to  all 
£,ales  of  this  description,  and  which  are  duly  brought  to 
the  buyer's  knowledge  before  the  bargain  is  struck ; 4 
and  a  seller  who  expressly  warrants  for  a  limited  period 
alone,  as  against  all  defects  for  a  certain  space  of  time, 
or  provided  notice  be  given  of  a  defect  without  a  speci- 
fied number  of  days,  is  liable  only  for  faults  discov- 
ered and  pointed  out  by  the  buyer  within  the  stated 
period.5 

Test  and  trial  of  article.  It  would  seem  to  be  the 
doctrine  of  the  authorities  that  if,  accompanying  a  sale, 
there  is  a  warranty  that  the  article,  if  set  up  in  a  certain 
manner  and  location,  and  operated  in  a  certain  way, 
will  prove  satisfactory,  as  that  exhaust  fans  for  a  black- 
smith shop  would  exhaust  the  smoke  and  gases  in  a 
satisfactory  manner,  such  warranty  is  conditional  upon 
the  test  and  trial  agreed  to  be  made,  and  the  purchaser 
must  make  his  determination  in  regard  to  the  fulfill- 
ment of  the  warran'y,  not  upon  mere  investigation,  but 
only  after  test  and  trial  based  upon  setting  up  and 
operating  the  article  in  the  mode  agreed.6 

1  2  Schonler  on  Personal  Property,  ?  330.   And  see  Bennett's  Ben- 
jamin on  Sales,  §  615.    Proof  of  a  conditional  warranty  will  not  sup- 
port an  allegation  of  an  absolute  warranty:  Deming  v.  Foster,  42 
N.  H.  185. 

2  Sf>e  Smith  ?'.  Borst,  63  Barb.  57  (directions  to  cure  defect)  ;  Wood 
v.  Smith,  5  Moody  &  R.  124  (refusal  to  positively  warrant). 

3  2  Schouler  on  Personal  Property,  \  330. 

4  See  By  water  v.  Richardson,  1  Ad.  &  E.  508. 

5  See    By  water   ?».  Richardson,  1    Ad.  &    E.  508 ;    Chapman  v. 
Owyther,  Law  R.  1  Q.  B.  463 ;  Story  on  Sales,  \  363.    Basis  of  para- 
graph :  2  Schouler  on  Personal  Property,  §  330.    Like  effect :  Camp- 
bell on  Sales,  320 ;  Biddle  on  Chattel  Warranties,  g  75.    Notice  of 
defects :  See  next  section  on  that  subject. 


473  WARRANTY  IN  GENERAL.  §   323 

6  Exhaust  Ventilator  Co.  v.  Chicago  etc.  Ry.  Co.  28  N.  W.  Rep. 
(W  is.)  343;  22  The  Reporter,  381 ;  reviewing  Manny  v.  Glonclenning, 
15  \Vis.  50 ;  Manuf.  Co.  v.  Brush,  43  Vt.  528 ;  Daggett  v.  Johnson,  49 
V  t»  345. 

\  323.  Notice  of  defects.  —  Keeping  machinery  without. 
Where  a  warranty  in  a  written  and  printed  order  on  a 
sale  of  machinery  contains  a  condition  that  written 
notice  of  any  failure  on  the  part  of  the  machinery  to  fill 
the  warranty  should  be  given  within  the  first  ten  days 
of  its  use,  and  that  continued  use  or  possession  thereof 
after  the  expiration  of  the  ten  days  should  be  conclusive 
evidence  of  the  fulfillment  of  the  warranty  to  the  satis- 
faction of  the  buyer,  there  is  no  breach  thereof,  of  which 
the  purchaser  can  take  advantage,  when  it  appears  that 
the  machinery  had  been  used  for  two  months,  and  that 
no  written  notice  had  ever  been  given,  although  the 
machinery  failed  to  work  satisfactorily  on  the  very  first 
day  of  use.1 

Not  given  ivithin  stipulated  time.  But  the  omission  of 
the  purchaser  of  an  engine  and  belt  designed  to  run  a 
threshing-machine,  who  relies  as  a  defense  to  a  price 
note  upon  the  failure  of  the  engine  to  fulfill  the  terms 
of  a  warranty,  to  give  written  notice  of  the  failure  to  do 
its  work  properly  within  the  time  specified  in  the  con- 
tract of  purchase,  is  not  conclusive  that  the  engine  per- 
formed properly;2  nor  will  it  prevent  such  defense, 
where  it  appears  that  the  delay  was  occasioned  by  the 
desire  and  efforts  of  the  seller  to  remedy  the  defects, 
that  written  notice  was  given  within  a  reasonable  time, 
and  that  there  was  ample  justification  for  a  finding  of 
waiver  by  the  seller  of  his  right  to  insist  upon  such 
notice  within  the  stipulated  time.3 

Waiver,  etc.  And  it  has  been  held  that  the  seller 
might  waive  the  written  notice  where  there  was  a  con- 
dition in  a  warranty  of  an  agricultural  machine,  sold  in 
Minnesota,  that  written  notice  stating  wherein  the 


§   323  WARRANTY  IN  GENERAL.  474 

machine  failed  to  satisfy  the  warranty  was  to  be  im- 
mediately given  by  the  purchaser  to  the  seller  at  a  place 
in  Michigan,  and  reasonable  time  allowed  to  get  to  it 
and  remedy  the  defect,  unless  it  was  of  such  a  nature 
that  the  seller  could  advise  by  letter.4 

1  Brown  v.  Russell.  105  Ind  46,  54  ;  4  N.  E.  Rep.  428. 

2  Nat.  Bank  <fe  Loan  Co.  v.  Dunn,  106  Ind.  110, 118  ;  6  N.  E.  Rep.  131. 

3  Nat.  Bank  &  Loan  Co.  ?>.  Dunn,  106  Ind.  110,  118,  119;  citing, 
McCormick  etc.  Co.  v.  Gray,  100  Ind.  285  ;  and  distinguishing  Brown 
v  Russell,  105  Ind.  46. 

4  Nichols  v.  Root,  29  N.  W.  Rep.  (Minn.)  160  ;  following  Nichols 
v.  Knowles,  31  Minn.  489  ;  18  N.  W.  Rep.  413.    In  such  a  case,  it  was 
further  held,  the  purchaser  might  give  the  notice  by  properly  mail- 
ing it,  and  through  an  agent  writing  in  his  behalf,  a'though  such 
agent  was  for  other  purposes  agent  for  the  seller  :  Nichols  v.  Root. 
29  N.  W.  Rep.  160. 


475  WARRANTY  OF  TITLE.  g   324 

CHAPTER 

WARRANTY  O^\TlTLE. 

2  324.    In  general. 

1  325.    Transfer  of  interest,  € 

\  326.    Transfer  of  incorporeal  pen 
g  327.    General  doctrines. 

2  328.    Seller's  possession. 

2  329.    Breach  by  dispossession,  etc. 

2  330.    Existence  and  removal  of  encumbrances. 

\  324.  In  general.  —  Derived  from  seller's  language, 
conduct,  etc.  The  courts  are  quite  ready  to  construe,  as 
constituting  an  express  warranty,  language,  acts,  and 
conduct  of  the  seller,  amounting  to  an  affirmation  of 
anything  concerning  the  specific  subject-matter  of  the 
sale,  which  might  reasonably  be  the  basis  of  a  war- 
ranty upon  the  assumption  that  they  were  relied  upon 
by  the  buyer,  and  were  so  designed  ;  l  and  this  principle 
has  been  thought  quite  broad  enough  to  include  many 
of  the  cases  which  might  involve  the  question  whether 
there  was  a  warranty  of  title  or  not.2 

On  executory  sale.  It  is  also  well  settled  that  in  an 
executory  agreement  for  a  sale  of  personal  property,3 
the  vendor  warrants,  by  implication,  his  title  to  the 
goods  which  he  promises  to  sell,4  since  the  contract 
would  not  be  fulfilled  by  the  transfer  of  the  possession 
of  another's  goods,  instead  of  a  transfer  of  the  title  to 
goods  which  he  could  enjoy  and  use  as  his  own.5 

Effect  of  fraud.  So  where  the  seller  knows  that  the 
chattels  which  he  offers  for  sale  do  not  belong  to  him, 
and  conceals  his  want  of  title  from  the  buyer,  the  latter 
is  not  liable  for  the  price  of  goods  whose  transfer  was 
infected  with  fraud.6 

Implied  warranty.    But  where  there  is  no  express 


t^ 


§   324  WARRANTY  OF  TITLE.  476 

warranty,  and  in  the  absence  of  fraud,  the  maxim 
caveat  emptor1  was  originally  deemed  applicable  to 
present  sales  of  personal  property ; 8  though  in  England, 
it  has  been  declared  that  the  exceptions  "  well  nigh  eat 
up  the  rule";9  and  in  this  country  it  is  the  settled 
law  that  the  vendor  of  personal  property  in  his  posses- 
sion warrants  his  title  to  the  same  by  implication.10 

Transfer  of  interest.  In  both  countries,  however 
there  is  no  implied  warranty  of  title  upon  a  transfer 
merely  of  the  interest  in  a  chattel  held  by  the  party 
selling  or  directing  the  sale  ;n  though  the  bargain  and 
sale  of  a  specific  chattel,  where  nothing  further  remains 
to  be  done  according  to  the  intent  of  the  parties  to  pass 
the  title,  undoubtedly  transfers  all  the  property  the 
vendor  has.12 

Rebutting  presumption.  And  whether  the  sale  be  by 
written  bill  of  sale  or  oral  transfer,  the  implied  war- 
ranty of  title  may  be  rebutted  by  parol,  and  the  vendor 
may  thus  overcome  the  legal  presumption  by  proof 
that  he  did  not  warrant  the  title.13 

1  See  citations  in  next  note.    Express  and  implied  warranty: 
See  2  316,  on  KIXDS  OF  WARRANTY. 

2  £  Schouler  on  Personal  Property,  \  371  ;  citing,  Burgess  ?'.  Wil- 
kinson, 13  K.  I.  6-46  ;  Adamson   v.  Jarvis,  4  Bing.  66 ;  1  Schouler  on 
Personal  Property,  \\  330,  331.    So  it  is  said  to  be  universally  conceded 
that  an  affirmation  by  the  vendor  of  an  ascertained  specific  chattel, 
that  the,  chattel  is  his,  which  is  equivalent  to  warranty  of  title,  may 
be  implied  from  the  conduct  of  the  seller,  as  well  as  from  his  words, 
and  may  also  result  from  the  nature  and  circumstances  of  the  sale  : 
Bennett's  Benjamin  on  Sales,  §627.    See  Eichholz  v.  Bannister,  17 
Com   B.  N.  S.  70S  ;  Bagueley  v.  Hawley,  Law  R.  2  Com.  P.  625 ;  Sims  v. 
Marryat,  17  Q.  B.  281  ;  Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  592  ;  note 

-  to  Scott  v.  Ilix,  62  Am.  Dec.  461.    And  compare  2  Blackst.  Com.  451. 

3  See  generally  chapter  on  EXECUTORY  SALES. 

4  See  Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  592. 

5  See  Morley  v.  Attenborough,  3  Ex.  500  ;  Bennett's  Benjamin  on 
Sales  \l  627,  6>0     And  in  the  case  of  such  an  executory  sale,  the  pur- 
chaser has  the  right  to  refuse  to  accept  the  chattel  under  a  defective 
title  not  made  clear  bv  the  seller,  and  to  recover  any  portion  of  the 
purchase  money  which  he  may  have  advanced,  or  to  escape  liability 
for  payment  of  the  unpaid  price  if  the  chattel  be  recovered  from  him  : 
S-e  Morley  v   Attenborough,  3  Ex.  f>00,  509  ;  Story  on  S^les,  $  367  b  ; 
2  Schouler  on  Personal  Property,  g  36i) ;  Brown  v'.  Cockburn,  37  Up. 
Can.  Q.  B.  592, 


477  WARRANTY   OP  TITLE.  \   325 

6  See  Sweetman  ?>.  Prince,  62  Barb.  256,  257  ;  Morley  v.  Attenbor- 
ough, 3  Ex.  500  ;  Bennett's  Benjamin  on  Sales,  ?  627,  n.  i,  and  \  (i20  ; 
Story  on  Sales,  \  367  b  ;  2  Schouler  on  Personal  Property,  ?  370. 

7  See  Fawcett  v.  Osborn  32  111.  411 ;  83  Am.  Dec.  278,  282  ;  Long  v. 
Hickingbottom,  28  Miss.  772;  64  Am.  Dec.  118,  liy;  2  Kent  Com.  608, 
60J. 

8  See  Morley  v.  Attenborough,  3  Ex.  500  ;  Noy's  Maxims,  ch.  42; 
Co.  Lict.  102  a  ;  note  to  Scott  v.  Hix,  62  Am.  Dec.  460.    But  compare, 
contra,  2  Blackst.  Com.  451. 

9  Sims  v.  Marryat,  17  Q.  B.  281 ,  290.    And  consult  Eichholz  v.  Ban- 
nister, 17  Com.  B.  IST.  S.  708;  Brown  v.  Coekburn,  E7  Up.  Can.  Q.  B. 
592,  very  fully  reviewing  English  authorities  ;  note  to  Scott  v.  Hix, 
62  Am.  Dec.  461, 462. 

10  See  Johnson  v.  Powers,  65  Cal.  179 ;  Baker  t>.  McAllister,  3  Pac. 
Rep.  (Wash.  T.)  5J1 ;  Byrnside  v.  Burdett,  15  W.  Vu.  702  ;  Whitney  v. 
Heywood,  6  Cush.  82 ;  Shattuck  v.  Green,  104  Mass.  4"> ;  People's  Bank 
v.  Kurtz,  U9  Pa.  St.  344 ;  44  Am.  Bep.  112  :  note  to  Scott  v.  Hix,  62  Am. 
Dec.  463;  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  457.    Consult 
also,  Somers  v.  O'Donohue,  9  Up.  Can.  C.  P.  210.    So  on  an  exchange 
Of  chattels  :  See  Hunt  v.  Sackett,  31  Mich.  18 ;  Patee  r.  Pel  ton,  48  Vt. 
182  •  Byrnside  v.  Burdett,  15  W.  Va.  702  ;  note  to  Scott  v.  Hix,  62  Am. 
Dec.  467,  so  citing  these  cases,  and  referring,  also,  to  Gaylor  ?>.  Copes, 
16  Fed.  Rep.  (La.)  4'J  (payment  in  chattels).    And  consult  Sargent  v. 
Currier,  49  N.  H.  310,  311 ;  6  Am.  Rep.  524. 

11  See  Chapman  v.  Speller,  14  Q.  B.  621 ;  19  Law  J.  Q.  B.  241 ;  Hoc 
v.  San  born  21  N.  Y.  556  ;  78  Am  Dec.  163;  First  Nat.  Bank  v.  Mass, 
etc.  Co.  123  Mass.  330  ;  Biddle  oa  Chattel  Warranties,  \\  258-262  ;  note 
to  Scott  v.  Hix.  62  Am.  Dec.  466. 

12  Morley  v  Attenborough,  3  Ex.  500. 

13  Johnson  v  Powers,  65  Cal.  179  ;  citing,  Miller  v.  Van  Tassel,  24 
Cal  458     And  consult  note  to  Scott  v.  Hix  62  Am.  Dec.  466. 

I  325.  Transfer  of  interest,  etc.  —  In  general.  A  war- 
ranty of  title  will  not  be  implied  where  it  is  expressly 
negatived,  or  where  the  circumstances  clearly  show  that 
there  was  no  warranty  intended  or  understood.1  Thus 
one  may  bargain  merely  for  the  seller's  quit  claim  of 
tille,2  as  where  one  buys  goods  knowing  that  they  are 
claimed  by  a  third  party,3  and  meaning  to  take  the 
risk ; 4  and  generally  where  the  facts  are  equally  well 
known  to  both  parties,  and  the  sale  is  made  under 
circumstances  indicating  that  the  vendor  int3nds  to 
transfer  only  his  interest.5 

Official  sales.  Upon  this  ground  or  that  of  the  official 
character  of  such  sales,6  it  is  held  that  there  is  no  war- 
ranty of  title  implied  in  the  case  of  judicial  sales  or 
others  made  in  a  fiduciary  or  representative  capacity, 


§   326  WARRANTY  OF  TITLE.  478 

as  in  the  instances  of  sales  made  by  sheriffs  and  other 
officers  of  the  law,  or  by  executors,  administrators,  or 
other  trustees.7 

Sales  of  pledged  or  mortgaged  chattels.  And  the  same 
rule  applies  to  the  sale  by  the  pledgee  or  mortgagee  of 
a  chattel  of  the  property  which  he  holds  as  security  for 
his  debt.8 

1  See  Story  on  Sales,  \  367  a ;  2  Schouler  on  Personal  Property, 
2372. 

2  See  Morley  v.  Attenborough,  3  Ex.  500. 

3  See  Bogart  i».  Chrystie,  24  X.  J.  L.  57,  60. 

4  2  Schouler  on  Personal  Property,  \  372,  suggesting  that  to  this 
general  principle  should  perhaps  be  assigned  numerous  cases  which 
are  differently  distinguished  by  the  courts,  and  referring  to  Page  r. 
Cowasjee  Eduljee,  Law  R.  1  P.  C.  127,  and  Baguely  v.  Hawley,  Law 
R.  2  Com.  P  625. 

5  Hopkins  v.  Grinnell,28  Barb.  5-"3 ;  as  cited  in  note  to  Scott  v. 
Hix,  62  Am  Dee.  4Gfi  ;  referring  Klso,  to  Jones  •»-.  If  ungerford,  3  Met. 
515;  and  First  Nat.  Bank  v.  Maps.  etc.  Co.  123  Mass,  srx);  and  to  con- 
trary view  in  Dresser  v.  Alnsworth, 9  Barb.  620.    S"e,  also,  Krumb- 
haar  v.  Birch,  8T  Pa.  St.  42G,  427,  423  ;  Brown  v.  Cockburn,  37  L'p.  Can 
Q.  B.  591,  603,  604,  606. 

6  See  Hoe  v  Sanborn,  21  X.  Y.  552,  556 ;  78  Am.  Dec.  163. 

7  See  Chapman  v.  Speller,  1 1  Q.  B.  621  ;  Blood  v.  French,  0  Gray, 
197  ;  Bartholomew?-.  Warner  '.'.1  Conn.  «J8  ;  Scranton  ?•.  Clark,  39  N.  Y. 
220  ;  Baker  v.  Arnot,67  N.  Y.  448  ;  Fore  v.  McKenzie,  58  Ala.  115  ;  Har- 
rison v.  Shanks,  13  Bush,  6 JO  ;  Henslewv.  Baker,  10  Mo.  157  ;  Stephens 
v    Ells,  65  Mo.  456 ;  Mechanics'  Assoc.  ?•.  O'Conner,  29  Ohio  St.  651  ; 
Brigham  ?•.  Maxey,  15  111.  2;,5  :  2  Schouler  on  Personal  Property,  \  372, 
so  citing  these  cases  ;  Storv  on  Sales,  \  367  a  :  2  Corbin's  Benjamin  on 
Sales,  \  961,  n.  20;  citing,  also,  Mockbee  v.  Gardner,  2  Har.  &  G.  176; 
Storm  v.  Smith,  4°,  Miss.  4' 7  ;  Hicks  v.  Skinner,  71  N.  C.  539;  Corwin 
v.  Benham  2  Ohio  St.  ?6 ;  Brunner  » .  Br^nntin,  40  Ind.  98  ;  Neal  v.  Gil- 
laspy,56  Ind.  451  ;  The  Mont  Allegre.9  Wheat.  6'6  ;  Blddle  on  Chattel 
Warranties,  \\  261,  2P2  ;  quoting,  Hoe  v.  Snnborn,  21  N.  Y.  552,  556;  78 
Am.  Dec.  163.    Consult,  also,  note  to  Scott  ?'.  Hix,  62  Am  Dec.  466. 

8  See  Morley  v.  Attenborough,  3  Ex.  500;  Sh^pp^rd  ?>.  Earles,  13 
Hun,  651,  653  ;  nbfe  to  Scott  ?-.  Hix,  62  Am.  Dec.  4*56  ;  Sims  ?'.  Marryat, 
17  Q.  B.  281,  290  ;  Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  591,  604. 

$  328.  Transfer  of  incorporeal  personalty. —  Warranty 
of  title.  The  doctrine  that  the  vendor  of  chattels  in 
possession  impliedly  warrants  the  title  extends  to 
choses  in  action,1  whether  negotiable  or  otherwise,2  as 
well  as  to  other  descriptions  of  personal  property.3 

Scope  and  application.  And  the  import  of  the  war- 
ranty in  such  a  case  is  said  to  be  that  the  chose  in  action 


479  WARRANTY  OF  TITLE.  g   327 

is  genuine,  and  not  spurious,  false,  or  counterfeit.4  This 
principle  applies  to  transfers  of  notes,  bonds,  stock, 
warrants,  accounts,  etc.5 

Patent  rights.  In  the  transfer  of  patent  rights  it  has 
also  been  laid  down  that  the  seller  impliedly  makes 
the  same  warranty  of  tUle  as  if  he  were  disposing  of 
any  other  species  of  personal  property;6  though  the 
exact  scope  of  this  warranty  as  covering  the  existence, 
or  also  the  validity  of  the  patent,  and  under  various 
forms  and  subjects  of  assignment,  seems  to  be  a  matter 
of  some  uncertainty." 

1  Flynn  v.  Allen,  57  Pa.  St.  482  ;  as  quoted  in  note  to  Scott  v.  Hix, 
62  Am.  Dec.  4G7.    And  see  People's  Bank  v.  Kurtz,  9!)  Pa.  St.  344  ;  44 
Am.  Bep  112  ;  Boyd  v.  Anderson,  1  Over.  438  ;  3  Am.  Dec.  762,768  769  ; 
Woods  v.  Sheldon,  13  Vroom,  4'Jl ;  36  N.  J.  L.  521,  fully  discussing 
subject ;  Porter  v.  Bright,  82  Pa.  St  441, 443. 

2  See  Boyd  v  Anderson,  1  Over.  438  ;  3  Am.  Dec.  762,  769  ;  Wood  v. 
Sheldon,  13  Vroom,  421 ;  3G  Am.  Rep.  523. 

3  People's  Bank  v.  Kurtz,  99  Pa.  St.  344  ;  44  Am.  Rep.  112,  holding 
that  on  a  sale  of  stock  there  is  an  implied  warranty  of  title  and 
genuineness,  but  not  that  the  stock  is  not  part  of  a  fraudulent  over- 
issue.   Compare  State  v.  North  La.  etc.  R.  R.  Co.  34  La.  An.  947,  953  ; 
Currie  v.  White,  6  Abb.  Pr.  N.  S.  352,  376,  377. 

4  See  Flynn  v.  Allen,  57  Pa.  St.  482  ;  note  to  Scott  v.  Hicks,  62  Am. 
Dec.  4(>7  ;  Swanzoy  v.  Parker,  50  Pa.  St.  441,  450.    Compare  Baker  v. 
Arnot,  67  N.  Y.  448. 

5  See  Swanzey  v.  Parker,  50  Pa.  St.  441,  4oO  ;  Chambers  t\  Union 
Nat.  Bank,  78  Pa.  St.  205,  209  ;  Donaldson  v.  Newman.  9  Mo.  App.  235, 
242  ;  Porter  v.  Bright,  82  Pa.  St.  441,  443  ;  Gilchrist  ?>.  Billiard,  53  Vt. 
592  ;  38  Am.  Rep.  706,  holding  that  warranty  implied  that  accounts 
exist  and  are  due.    Consult,  also,  cases  in  note  before  last. 

6  Darst  v.  Brockway,  11  Ohio,  4G2,  471. 

7  Compare  Smith  ?'.  Neale,  2  Com.  B.  N.  S.  67,  and  Hall  v.  Conder 
2  Com.  B.  N.  S.  22,  with  Pacific  Iron  Works  v.  Newhall,  34  Conn.  67, 
77,  and  Croninger  v.  Paige,  48  Wis.  229,  232,  233.    Consult  2  SchouU-r 
on  Personal  Property,  ?  373  ;  Biddle  on  Chattel  Warranties,  g?  24 s -2", 
fully  discussing  subject,  and  reviewing,  also,  Geiger  v.  Cook,  3  Watts 
<fe  S.  270;  Nnsh  7-.  Lull,  102  Mass.  60;  3  Am.  Rep.  435,  4°~  ;  Holden  v. 
Curtis,  2  N.  H.  61,  63  ;  Faulks  r.  Kamp,  3  Fed.  Rep.  8<V3,  POO ;  Gray  v. 
Billington,  21  Up.  Can.  C.  P.  288  ;  and  Chanter  r.  Leese,  4  M^es.  &  W. 
2% ;  5  Mees.  &  W.  698.    See  further  Curran  v.  Burdsall,  20  Fed.  Rep. 
835. 

\  327.  General  doctrines.  —  In  England.  In  England, 
it  has  been  declared  to  be  the  result  of  the  older  author- 
ities, that  there  is  no  warranty  of  title  in  the  actual  con- 
tract of  sale,  any  more  than  there  is  of  quality,  but  that 


§   327  WARRANTY  OE  TITLE.  480 

the  rule  of  caveat  emptor  applies  to  both  ; '  and  it  has  been 
held  that  if  a  pawnbroker  sells  unredeemed  pledges 
he  does  not  warrant  the  title  of  the  pawnor,  but  merely 
undertakes  that  the  time  for  redeeming  the  pledges  has 
expired,  and  sells  only  such  right  as  belonged  to  the 
pawnee.2  But  on  the  other  hand  it  has  been  held  that 
a  purchaser  at  the  seller's  warehouse  of  goods  which 
turned  out  to  have  been  stolen,  so  that  the  buyer  was 
compelled  to  restore  them  to  the  owner,  might  recover 
back  on  the  common  money  counts  the  price  which  he 
had  paid  for  the  goods,  upon  the  ground  that  the  seller 
by  his  conduct  in  disposing  of  the  goods  as  a  shopkeeper 
had  affirmed  that  he  was  the  owner  of  the  goods  sold, 
and  that  the  consideration  of  the  contract  had  therefore 
failed.3  And  it  has  been  asserted  that  while  it  may  be 
otherwise  in  cases  where  the  conduct  of  the  vendor  ex- 
pressed that  the  sale  was  a  sale  of  such  title  only  as  the 
vendor  had,4  yet  in  all  ordinary  sales  the  party  who 
undertakes  to  sell  exercises  thereby  the  strongest  act  of 
dominion  over  the  chattel  which'  he  proposes  to  sell, 
and  would  lead  the  purchaser  to  believe  that  he  was 
the  owner  of  the  chattel;5  and  in  almost  all  modern 
transactions  the  vendor,  in  consideration  of  the  pur- 
chaser paying  the  price,  is  understood  to  affirm  that  he 
is  the  owner  of  the  article  sold.6  Accordingly  it  has 
been  suggested  that  the  rule  as  stated  in  accordance  with 
the  recent  English  decisions  would  seem  to  be,  that  a 
sale  of  personal  chattels  implies  an  affirmation  by  the 
vendor  that  the  chattel  is  his,  and  therefore  he  warrants 
the  title  unless  it  be  shown  by  the  facts  and  circum- 
stances of  the  sale  that  the  vendor  did  not  intend  to 
assert  ownership,  but  only  to  transfer  such  interest  as 
he  might  have  in  the  chattel  sold.7 

In   Canada.      And  in   Canada    positive    intimations 
favorable  to  this  conclusion  have  been  thrown  out  in  a 


481  WARRANTY  OF  TITLE.  §    327 

case  of  an   executory  sale  where  there  could  be  no 
question  but  that  there  was  a  warranty  of  title.8 

In  United  States.  In  the  United  States  some  of  the 
cases,  without  making  any  reference  to  the  seller's  pos- 
session, declare  generally  that  every  vendor  of  chattels 
13  supposed  to  know  his  title,  and  to  warrant  title  to 
what  he  assumes  to  sell,  if  he  sells  without  disclosing 
any  defects  that  may  exist  in  his  title.9  Cut  according 
to  a  statement  of  the  law,  perhaps  conforming  more 
closely  to  the  current  of  authority,  it  may  now  be  re- 
garded as  well  settled  in  this  country  that  a  party  sell- 
ing as  his  own,  personal  property  of  which  lie  is  in 
possession,  warrants  the  title  to  the  thing  sold,10  and 
that  if  by  reason  of  a  defect  of  title  nothing  passes,  the 
purchaser  may  recover  back  his  money,  though  there 
be  no  fraud  or  warranty  on  the  part  of  the  vendor.11 

1  Morley  v.  Attenborough,  3  Ex.  500.    But  see  Sims  v.  Marryat,  17 
Q.  P>.  2sl,  2  >0  ,  Eichholz  v.  Bannister,  17  Com.  B.  N.  S.  708  ;  34  Law  J. 
Com.  P.  105  ;  Brown  v.  Cock  burn,  37  Up.  Can.  Q.  B.  592,  604. 

2  Morloy  Vm  Attenborough,  3  Ex.  500  ;  as  stated,  Sims  v.  Marryat, 
17  Q.  B.  "261  :  "0  L:iw  J.  Q.  B.  431.    And  see  Chapman  r.  Speller,  14 
Q.  B.  6-1 ;  lb  Law  J.  Q.  B.  241 ;  2  Schouler  on  Personal  Property,  9  37(5 ; 
\  325,  on  TrtAXsyKH  OF  INTEREST,  ETC.  ;  Hoe  v.  Sanborn,  21  N.  Y. 
552,  555  ;  78  Am.  Dec.  1G3. 

3  Eiphholz  v.  Bannister,  17  Com.  B.  N.  S.  703  ;  34  Law  J.  Com.  P. 
10o  ;  noted  ia  Urown  v.  Cock  burn,  37  Up.  Can.  Q,.  B.  532,  604,  G05. 

4  S^e  Morlpy  v.  Attenborough,  3  Ex.  500 ;  Chapman  v.  Speller,  14 
Q.  B.  021 ;  lia*l  v.  Conder,  2  Com.  B.  JNT.  S.  22. 

5  Eichholz  v.  Bannister,  17  Com.  B.  N.  S.  70S.    See  Bennett's  Ben- 
jamin on  Sales,  ft  0  3,  6-,6  ;  citing,  L'Apostre  ?'.  L'Plaistier,  as  cited  H 
Kyall  v.  Bowles,  1  Ves.  Sr.  351,  and  Tudor's  Leading  Cases  in  Equity 
(5th  e-1.),  7H3;  also  reported  as  Ryall  v.  Rolle,  1  At:*.  1G5.    Consult 
Brown  v.  Cbckburn,  37  Up.  Can.  Q.  B.  502,  602. 

6  Eichholz  v.  Bannister,  17  Com.  B.  N.  S.  70S  ;  S4  Law  J.  Com.  P. 
105.    See  2  Schouler  on  Personal  Property,  ?  «77. 

7  See  Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  592,  605  ;  note  to 
Reynolds  v.  Pulmer,  21  Fed.  Hep.  45G;  note  to  Scott  v.  Uix,  <i2  Am. 
Dec.  4GO-4M,  fully  discussing  English  doctrine;  Bennett's  Benjamin 
on  Sales,  §  6">J  ;  Biddle  on  Chattel  Warranties,  \\  227-233.    But  com- 
pare con?m,Chitty  on  Contracts  (11th  od.)t418;  Broom's  Legal  Maxima 
(5th  ed.),  7JJ-801  ;  Leuke  L>ig.  Contr  402  ;  2  Taylor  on  Evidence,  Ua4. 

8  Brown  v.  Cockburn,  37  Up.  Can.  Q.  B.  5!)2,  606.    And  in  another 
instance,  whore  evidence  of  KH  express  warranty  was  found  suni- 
cicnt,  an  inc-Jination  was  expressed  toward  the  opinion  that  where  a 
man  sells  us  his  own  a  chattel  which  is  then  in  his*  actual  possession, 

NEWMARK  SALES. —  41. 


g    328  WARRANTY   OF   TITLE.  482 

and  delivers  it  to  the  purchaser,  from  whom  it  is  taken  by  the  right- 
ful owner,  the  vendor  is  to  be  treated  as  impliedJy  warranting  that 
he  has  a  right  to  sell,  and  is  therefore  bound  to  compensate  his 
vendee  for  the  loss:  Somers  v.  O'Donohue,  1)  Up.  Can.  C.  L\  203.  But 
compare  Johnston  v.  Barker,  20  Up.  Can.  C.  P.  223,221,  232;  note  to 
Scott  v.  Hix,  02  Am.  Dec.  463. 

9  See  McKnight  v.  Devlin,  52  N.  Y.  401 ;  11  Am.  Rep.  715 ;  Hoe  ?•• 
Sanborn,  21  N.  Y.  552,  555;  78Am.  Dec.  164  ;  distinguishing,  Morley  r. 
Attenborongh,  3  Ex.  500  ;  Ricks  ?-.  Dillahanty,  8  1'or*.  137.  But  con- 
sult Huntingdon  v.  Hall,  36  Me.  501 ;  58  Am.  Dec.  765,  766. 

10  People's  Bank  7'.  Kurtz,  09  Pa.  St.  344  ;  -14  Am.  Rep.  112.    And 
see  note  to  Scott  r.  Hix,  62  Am.  Dec.  46:} ;  note  to  Reynolds  r.  Palmer, 
21  Fed.  Rep.  457 ;  also,  Johnson  v.  Powers,  65  Cal.  179  ;  Baker  i\  Mc- 
Allister, 3  Pac.  Rep.  (Wash.  T.)  581. 

11  People's  Bank  v.  Kurtz,  99  Pa.  St.  344;  44  Am.  Rep.  112.    See 
Biddle  on  Chattel  Warranties,  \\  236-238  ;  note  to  Reynolds  v.  Palmer, 
31  Fed.  Rep.  457. 

g  328.  Seller's  possession.  —  As  determining  feature. 
The  courts  of  the  United  States  have  repeatedly  recog- 
nized a  distinction  between  the  transfer  of  chattels 
which  are  in  the  seller's  possession,  where  there  is  con- 
sidered to  be  an  implied  warranty  of  title  on  the  seller's 
part,  and  the  transfer  of  chattels  which  are  in  the  pos- 
session of  another  party,  where  no  such  warranty  is 
implied,  and  the  vendee  buys  at  his  peril.1 

Distinction  established.  This  distinction,  which  ap- 
pears to  have  been  repudiated  by  the  later  English 
decisions,2  is  said  to  be  too  deeply  rooted  in  our  law  to 
be  easily  eradicated,  even  if  it  were  shown  to  be  mis- 
conceived in  its  origin.3 

Qualification  of  doctrine.  Some  of  the  recent  cases, 
however,  tend  to  establish  the  doctrine  that  the  sale  of 
personal  property  implies  a  warranty  of  ownership  in 
the  seller,  unless  the  circumstances  are  such  as  to  give 
rise  to  a  contrary  presumption,  as  is  particularly  the 
case  where  the  goods  are  absolutely  in  a  third  person's 
possession,  and  neither  absolutely  nor  constructively 
in  the  possession  of  the  seller.4 

Constructive  possession.  But  constructive  possession 
through  a  servant  or  agent  of  the  vendor,  or  of  a  tenant 


483  WARRANTY  OF  TITLE.  g   329 

in  common  with  him,  is  sufficient  to  raise  an  implied 
warranty  of  tLle.5 

Inference  of  possession.  And  i:  -  the  absence  of  evi- 
dence to  the  contrary,  it  may  be  presumed  that  the 
seller  had  possession  at  the  time  of  the  sale,  as  well  as 
that  the  sale  was  for  a  fair  price.6 


nolds  v.  Palmer,  21  Fed.  Rep.  457  ;  note  to  Scott  v.  Hix,  62  Am.  Dec. 
433  ;  Johnson  v.  Powers,  65  Cal.  179  ;  Baker  v.  McAllister,  8  Pac.  Rep. 
(Wash.  T.)  531.  Compare  Huntingdon  v.  Hall,  36  Me.  501 ;  5.8  Am.  Dec. 
705,763;  Long  v.  Hickingbottom,  28  Miss.  772;  64  Am.  Dec.  118,  IK); 
note  to  S-ott  v.  Hix,  62  Am.  Dec.  4t>3,  464.  Like  view  favored  in 
Canada:  See  Somers  v.  O'Doaohue,  9  Up.  Can.  C.  P.  210. 

2  See  Pasley  v.  Freeman,  3  Term  Rep.  58  ;  Morley  v.  Attenbor- 
ough,  3  Ex.  5;;0;  EIohho:z  ?>.  Bannister,  17  Com.  B.  IST.  S.  7(H ;  Ben- 
nett's Benjamin  o-i  S:iU>s,  §  6'1 ;  Byrnsicle  v   Burdett,  15  W.  Va.  702. 
And  consult  note  to  Scott  v.  Hix,  62  Am.  Dec.  465. 

3  See  Byrnside  ?'.  Burdett,  15  W.  Va.  702 ;  Story  on  Sales,  §  367,  n. 
on  p.  4-Jfi  ;  2  Kent  Com.  478;  Biddle  on  Chattel  Warranties,  £242;<2 
Schouler  on  Personal  Property,  §  378. 

4  See  Gross  v.  Kierski,  41  Cal.  ill,  114;  Shattuck  v.  Green,  104 
Mass.  42,  44  ;  Sherman  v.  Champlain  Transp.  Co.  31  Vt.  1(52,  175  ;  2 
Schouler  on  Personal  Property,  2  378  ;  Whitney  v.  Heywood,  6  Cush. 
82,  56. 

5  See  Huntingdon  v.  Hall  36  Me.  501 ;  58  Am.  Dec.  765,  766 ;  Shat- 
tuck v.  Green,  104  Mass.  42,  45. 

6  See  Long  v.  Hiekingbottom,  28  Miss.  772  ;  64  Am.  Dec.  118, 120  ; 
note  to  Scott  v.  Hix,  62  Am.  Dec.  465. 

\  329.  Breach  by  dispossession,  etc.  —  Need  of  eviction, 
or  disturbance  of  possession.  It  seems  to  be  the  rule  in 
many  of  the  States  that  in  the  absence  of  fraud  on  the 
part  of  the  seller,  a  purchaser  of  personal  property  can- 
not defeat  an  action  for  the  price,  by  showing  that  the 
property  is  owned  by  another,  unless  he  has  been 
ousted,  or  there  has  been  a  recovery  by  the  true  owner  ; l 
and  that  there  is  no  breach  of  the  implied  warranty  of 
title,  such  as  would,  for  instance,  initiate  the  running 
of  the  statute  of  limitations,  until  the  vendee  is  dis- 
turbed in  his  possession  of  the  chattels.2 

Deprivation  of  possession  unnecessary.  But  in  some 
of  the  States  it  seems  to  be  held,,  that  if  a  chattel  be  sold 


§   329  WARRANTY  OF  TITLE.  484 

to  which  the  vendor  has  no  title,  the  implied  warranty 
of  title  is  broken  at  the  time  of  sale,  and  that  the  pur- 
chaser may  immediately  maintain  his  action  for  dam- 
ages, whether  he  has  been  deprived  of  the  possession 
of  the  chattel  or  not.3 

Express  and  implied  warranty  of  title.  And  it  is  said 
to  be  the  settled  rule  in  Kentucky,  making  a  distinction 
between  an  express  warranty  of  title  to  chattels  and  the 
warranty  of  title  implied  by  law,4  that  in  case  of  the 
former  there  is  a  breach  of  the  warranty,  and  the  stat- 
ute of  limitations  commences  to  run  from  the  time 
when  the  vendee  is  disturbed  in  his  possession,  while 
in  case  of  implied  warranty  the  statute  is  set  in  motion 
instantly  upon  the  sale  and  delivery  of  the  goods.5 

Surrender  of  property,  etc.  In  Missouri,  it  is  held 
that  a  purchaser  of  personal  property  is  not  required  to 
wait  for  an  actual  deprivation  by  the  true  owner,  but 
may  surrender  the  property  voluntarily,  though  he 
must  then  be  able  to  show  conclusively  that  his  sur- 
render was  to  the  true  owner.6 

1  Soe  Sweetman  v.  Pririco,  62  Barb.  256,  257;  nnd  consult  Case  ?>. 
Hall,  24  \Venrt.  Hfi  ;  35  Am.  Dec.  605;  as  quoted,  22  Am.  Law  Keg. 
N.  S.  %  ;  or  Riddle  on  Chattel  Warranties,  \  2!>5,  which  also  refers  to 
Vibhard  r.  Johnson,  19  Johns.  77.    Compare,  also,  Krumbhuar   r. 
Birch,  83  Pa.  St.  428,  with  Flynn  v.  Allen,  57  Pa.  St.  485. 

2  See  Gross  v.  Kierski,  41  Cal.  111.    And  consult  Linn  v.  Porter,  31 
111.  107. 

3  See  Perkins  v.  Whelan,  116  Mass.  542;  Grose  v.  Hennessy,  13 
Allen,  389.    Compare  Gay  v.  Kiugsley,  11  Allen,  345  ;  Word  i>.  Cavin, 
1  Head,  507. 

4  See  Gross  v.  Kierski,  41  Cal.  Ill ;  22  Am.  Law  Reg.  N.  S.  96  ;  or 
Biddle  on  Chattel  Warranties,  \  296. 

5  S<>e  Payne  r.  Hodden,  4  Bibb,  304;  7  Am.  Dec.  739;  Scott  v. 
Scott,  2  Marsh.  A.  K.  217  ;  Tiptart  v.  Triplett,  1  Met.  570  ;  Chancellor 
v.  Wiggins,  4  Mon.  B.  202 ;  3D  Am.  Dec.  499. 

6  Drvden  v.  Kellogg,  2  Mo.  App.  92.    And  see  Matheny  v.  Mason, 
73  Mo.  677,  fiss  ;  3 )  Am.  Hep.  541,  545,  and  cases  cited  ;  also  McGiffen  v. 
Baird,  62  N.  Y.  3!!).    Compare,  generally,  Estelle  v.  Peacock,  48  Mich. 
40 1.    Condemnation  of  liquor  for  violation  of  revenue  law  :   Compare 
McKnight  ?'.  Devlin,  52  N.  Y.  300,11  Am.  Rep.  715,  with  Palmer  v. 
Hatch,  4fi  Mo.  585.    On  subject  of  section,  consult  further  following 
souses  of  foregoing  matter :  2  Schoulor  on  Personal  Property,  §  378, 
p.  o78  ;  Bennett's  Benjamin  on  Sales.  \  627,  n.  i ;  2  Corbin's  Benjamin 


485  WARRANTY  OF  TITLE.  §   330 

on  Sales,  ?  948,  n.  18  ;  Story  on  Sales,  367  6  ;  22  Am.  Law  Reg.  N.  S. 
96-98  ;  Biddle  on  Chattel  Warranties,  gg  294-302  ;  Gross  v.  Kierski,  41 
Cal.  Ill  ;  Matheny  v.  Mason,  73  Mo.  677  ;  39  Am.  Rep.  541.  Proof  of 
breach  where  no  eviction  :  Plummer  v.  Newdigate,  2  Duval,  1 ;  87 
Am.  Dec.  479.  And  compare  Bergen  v.  Riggs,  34  111.  170  ;  85  Am.  Dec. 

§  330,  Existence  and  removal  of  encumbrances. —  War- 
ranty extends  to  encumbrances.  The  warranty  of  title 
which  arises  under  the  settled  law  of  this  country,  on 
the  sale  of  property  in  the  possession  of  the  vendor,1 
extends  to  encumbrances.2 

Refusal  to  retain  goods.  And  it  has  been  held  that 
where  a  sale  is  made  with  warranty  of  title,  of  property 
upon  which  there  was  at  the  time  a  lien  of  any  kind,  not 
known  to  the  vendee,  by  reason  whereof  the  property 
is  taken  and  kept  from  the  vendee,  without  any  negli- 
gence or  fault  on  his  part,  such  taking  will  of  itself,  at 
the  option  of  the  vendee,  work  a  rescission  of  the 
contract  of  sale,  and  be  a  good  defense  to  an  action 
for  the  purchase  price,3  even  after  the  goods  have 
been  delivered,  upon  tendering  them  back  to  the 
vendor.* 

Paying  off  encumbrances.  The  buyer  may,  however, 
pay  off  encumbrances  on  property  sold  him,  and  bring 
suit  for  damages  for  breach  of  the  warranty  of  title,  or 
set  up  the  amount  paid  in  reduction  of  the  price  on  a 
suit  for  the  purchase  money,5  though  the  right  of  action 
will  not  accrue  until  the  money  is  paid.6 

Express  warranty.  The  liability  of  the  seller  is  even 
more  definitely  fixed  where  there  is  an  express  war- 
ranty of  title  against  encumbrances.7  And  there  may 
be  redress  for  breach  of  warranty  in  paying  off  an  en- 
cumbrance without  actual  eviction,  where  there  was  a 
sale  to  a  stranger,  under  foreclosure,  of  store-fixtures 
originally  disposed  of  with  a  covenant  to  "  warrant  and 
defend  the  sale,"  etc.,  and  agreement  on  the  part  of  the 
seller  to  satisfy  a  chattel  mortgage.8 


§   330  WARRANTY   OF   TITLE.  486 

1  See  Baker  v.  McAllister,  3  Pac.  Rep.  (Wash.  Tj  581 ;  referring  to 
following  cases:  Brown  v.  Pierce,  97  Mass.  46;  Williamson  v.  Sam- 
kuoiis,  34  Ala.  691 ;  Word  v.  Cavin,  1  Head,  50G  ;  Linton  v.  Porter,  31 
£11.  107  ;  Fawcett  v.  Osborn,  32  111.  411 ;  83  Am.  Dec.  278  ;  Boyd  v 
Whitfield,  19  Ark.  447  ;  Chism  v.  Woods,  Hardni,541 ;  3  Am.  Dec.  740  ; 
Heermance  v.  Vernoy,  6  Johns.  5  ;  Swett  v.  Colgate,  20  Johns.  196  ;  11 
Am.  Dec.  266  ;  McCoy  r.  Artcher,  3  Barb.  323 ;  Doe  ?'.  Stanion,  1  Mees. 
&  W.  701 ;  Vibbard  v.  Johnson,  19  Johns.  78  ;  Coolidge  r.  Brigham,  1 
Met.  551 ;  Willing  v.  Peters,  12  Serg.  &  R.  181 ;  Dean  ?-.  Mason,  4  Conn. 
428  ;  10  Am.  Dec.  162;  Tipton  v.  Triplett,  1  Met.  (Ky.)  570;  Bayse  v. 
Briscoe,  13  Mon.  B.  474. 

2  Baker  v.  McAllister,  3  Pacif.  Rep.  581. 

3  See  Defreese  v.  Trumper,  1  Johns.  274  ;  3  Am.  Dec.  329  ;  Dresser 
v.  Ainsworth,  9  Barb.  619 ;  Blusrlale  r.  Babcock,  1  Johns.  518  ;  Read  v. 
Staton,  3  Hayw.  (N.  C.)  159  ;  &  Am.  Dec.  740. 

4  Baker  v.  McAllister,  o  Pacif.  Rep.  581. 

5  See  Sargent  v.  Currier,  40  N.  H.  310  ;  6  Am.  Rep.  524  ;  Harper  ?'. 
Dotson,  43  Iowa,  232 ;  Lane  v.  Romer,  2  Chand.  61 ;  Baker  v.  McAllis- 
ter, 3  Pacif.  Rep.  581. 

6  See  Burt  v.  Dewey,  40  N   Y.  283  ;  Sargent  v.  Currier,  49  N.  II. 
310  ;  6  Am.  Rep.  524  ;  2  Corbin's  Benjamin  on  Sales,  2  948, 11.  18. 

7  Atkins  v.  Hosley;  3  Thomp.  &  C.  322  ;  Hahn  ?>.  Doolittle,  13  Wis. 
196 ;  2  Schouler  or  Personal  Property,  \  378,  p.  378,  n.  1 ;  referring, 
also,  to  Michel  r.  Ware,  3  Neb.  22!) ;  Burgess  v.  Wilkinson,  13  R.  I. 
646.    But  words  in  a  written  contract  importing  a  quit  claim  cannot 
be  construed  into  a  warranty  of  title  :  See  First  Nat.  Bank  v.  Loan  & 
Trust  Co.  123  Mass.  330 ;  Johnston  Harvester  Co.  v.  Bartley  81  Ind. 
406. 

8  Cahill  v.  Smith,  4  N.  E.  Rep.  (N.  Y.)  739  ;  affirming,  ,11  Hun, 
mem.;   referring  to   Bordwell  v.  Colie,  45  N.  Y.  494;   McGiffia  v. 
Baird,  62  N.  Y.  329. 


487  WARRANTY  OF  QUALITY.  g  331 


CHAPTER  XXIV. 

WARRANTY   OF  QUALITY. 

g  331.    Caveat  emptor. 

§  3-2.    Opportunity  for  Inspection. 

g  333.    Implied  warranty  of  quality. 

§  331.  Caveat  emptor. — English  doctrine.  In  England, 
the  decisions  enunciate  or  favor  the  general  principle 
that  the  seller  is  not  liable  for  defects  of  any  kind  in 
the  thing  sold,  so  that  there  is  no  implied  warranty  of 
the  quality  of  a  known,  ascertained  article,  unless  there 
is  an  express  warranty  or  fraud.1 

Sound  price.  And  in  this  country  there  is  in  most  of 
the  States  a  repudiation  of  the  doctrine  of  the  civil  law,2 
which  was  at  one  time  recognized  and  adopted  in  at 
least  two  of  the  States,8  that  a  sale  for  a  sound  price 
implies  a  warranty  of  the  thing  sold.4 

Application  of  maxim.  But  it  is  laid  down  that  the 
rule  of  the  common  law  is  well  established,5  that  upon 
a  rale  of  goods,  if  there  is  no  express  warranty  of  the 
goods,  and  no  actual  fraud,  the  maxim  caveat  emptor 
applies  and  the  goods  are  at  the  risk  of  the  buyer ; 6  and 
iL  is  declared  that  the  doctrine  of  caveat  emptor  is  of 
such  universal  acceptance  in  this  country  that  it  is 
sanctioned,  with  one  exception,7  by  the  courts  of  all  the 
States  in  the  Union  where  the  common  law  prevails.8 

Latent  defects.  Even  where  there  are  latent  defects 
in  the  chattel  sold,  such  as  fatal  diseases  in  animals,  yet 
in  the  absence  of  fraud  on  the  part  of  the  seller,  and 
special  knowledge  beyond  that  of  the  buyer,  the  con- 
sequences must  fall  upon  the  buyer,  if  ho  has  not  pro- 
tected himself  by  an  express  warranty.9  But  the  doctrine 
of  caveat  emptor  does  not  apply,  although  the  article 


§   331  WARRANTY  OF  QUALITY,  488 

was  inspected  before  purchase,  and  it  is  not  shown  that 
the  sellers  manufactured  it,  if  it  was  sold  for  a  specific 
use,  and  the  defect  was  latent  and  known  to  the  sellers 
and  concealed  by  them  from  the  buyers  at  the  time  the 
sale  was  made.10 

Extent  of  exceptions.  And  so  many  exceptions  to  the 
common-law  rule  of  caveat  emptor  have  arisen  and 
become  recognized,  that  the  tendency  of  the  decisions 
is  toward  the  opposite  doctrine  of  the  Homan  law,  that 
of  caveat  venditor,  and  the  present  law  seems  to  occupy 
a  ground  between  those  embodied  in  these  conflicting 
maxims.11 

1  See  Hall  v.  Condor,  2  Com.  B.  N.  S.  40  ;  Harvey  v.  Young,  Yel. 
21  ;  Parkinson  v.  Leo,  2  East,  3_'0  ;  us  cit^d,  Warren  Glass  Works  Co. 
i'.  Keystone  Coal  Co.  65  Md.  547  ;  5  Atl.  Hop.  2.A     Consult,  also, 
Campbell  on  Sales,  321 ;  2  Sohouler  on  Personal  Propertv,  ?  4  > ;  citing, 
Hopkins  v.  Tanqueray,  15  Com.  B.  LJO  ;  Jones  v.  Just,  Law  R.  3  Q.  B. 

2  See  Seixas  v.  Woods,  2  Caines.  48  ;  Hart  v.  Wright,  17  Wend.  269. 

3  See  Bailey  r.  Nickolls,  2  Root,  407 ;  1  Am.  Dec.  83  ;  Whitefield  v. 
M?Leod,  2  Bay,  3SO  ;  1  Am.  Dec.  600.    Still  prevails  in  South  Carolina : 
See  Thomas  v.  Sexton,  15  S.  C.  93. 

4  Warren  Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547 ;  5 
Atl.  Hop.  253.     And  s^e  2  Schouler  on  Personal  Property,  \  :;:">; 
ci-ing,  Story  on  Sales,  \  370  ;  Mixer  v.  Cohurn,  H  Met.  65.) ;  45  Am. 
1)  >e.  2-0;  Maso-i  r.  Cliappcll,  15  Gratt.  57 1 ;  Weimar  v.  Clement,  o7 
Pa.  St.  147  ;  78  Am.  D^c.  41 1.    But  see  Pease  v.  Sabin,  38  Vt.  432. 

5  See  Lukens  v.  Freiund,  27  Kan.  604  ;  41  Am.  Rep.  420,  430  ;  Getty 
v.  Rouatree,  2  Pinn.  37J  ;  2  Chund.  28 ;  54  Am.  Dec.  Kx*,  1*0. 

6  M  ixer  v.  Coburn,  11  Met.  561 ;  45  Am.  Dec.  2"0.    And  see  Ryan  v. 
TJlmer,  103  Pa.  St.  3.JJ ;  56  Am.  R  :-p.  210,  2i3  ;  Maxwell  v.  Lee, 27  N.  W. 
Hop.  (Minn.)  1%;  21  The  Reporter,  727.    At  least  in  the  case  of  a 
specific  ascertained  chattel  already  inspected  :  2  Schouler  on  Per- 
sonal Property,  \  o4G  ;  referring  to  Bennett's  Benjamin  on  Sales,  \  041 ; 
Dem  In?  v.  Foster,  42  X.  H.  105  ;  Mixer  v.  Coburn,  11  Met.  559 ;  45  Am. 
Doc.  2..0 ;  Pacific  Iron  Works  v.  Newhall,  34  Conn.  67  ;  Frazier  v. 
Harvey,  34  Conn.  4GJ  ;  Moses  v.  Mead,  1  Denio,  378  ;  43  Am.  Dec.  670  ; 
Woleott  v.  Mount,  3(i  N.  J.  L.  2C2  ;  13  Am.  R~p.  4-?3  ;  S.  C.  3S  N.  J.  L. 
4%;  20  Am.  Rep.  <O ;  Wcimer  v.  Clement,  37  Pa.  St.  147  ;  78  Am.  Dec. 
411 ;  Morris  v.  Thompson,  85  111.  1G,  18. 

7  See  Thomas  v.  Sexton,  15  S.  C.  93,  and  local  authorities  cited. 

8  Barnard  v.  Kellogg,  10  Wall.  383.    See  Warren  Glass  Works  Co. 
r.  Keystone  Coal  Co.  60  Md.  5-17  ;  5  Atl.  Rep.  203.    And  consult  note  to 
Reynolds  ?'.  Palmer,  21  Fed.  Rep.  440.    Thus  it  is  hud  down  that  with 
reference  to  warranties  as  to  quality  the  rule  is  that  the  law  does  not 
imply  such  a  warranty,  but  the  maxim  is  caveat  emptor,  and  the 
purchaser  has  no  remedy,  except  in  case  of  express  warranty  or 
fraud:  Johnson  v.  Powers,  65  C;il.  17').    Appli"iti-):is  <  f  rule  ciicarefi.t 
emptor  in  case  of  a  specific  ascertained  chattel :  bare  affirmation 


4S9  WARRANTY   OF  QUALITY.  §   332 

that  article  is  bczoar-stone  (Chandelor  v.  Lopus,  2  Cro.  Jac.  2 ;  1 
Smith's  Lead.  Cus.  2.J8.  And  see  Ryan  v.  L'lmer,  108. Pa.  St.  3"2  ;  56 
Am.  Dec.  210,  21o) ;  fitness  for  intended  purpose  of  machine  wliose 
component  parts  have  been  inspected  (See  Mallan  v,  Jiudloil',  17 
Com.  B.  N.  S.  5S8) ;  good  quality  of  specific  boat,  known  on  both  sides 
to  be  old  and  in  want  of  repair  (Weimer  v.  Clement,  39  Pa.  8U  147  ;  78 
Am.  Dec.  411) ;  fitness  of  oxen  bought  upon  inspection  to  do  work  on 
a  farm  :  Deming  v.  Foster,  42  N.  II.  165.  Source  of  these  illustrations : 
2  -Schouler  on  Personal  Property,  g  347.  And  see  Ryan  v.  Ulmer,  103 
Pa.  St.  332  ;  56  Am.  Dec.  210. 

9  2  Schouler  on  Personal  Property,  \  347  ;  citing,  Parkinson  v. 
Lee,  2  East,  314;  Kingsbury  v.  Taylor,  29  Me.  5U3;  50  Am.  Dec.  GC7 ; 
Frazer  v.  Harvey,  34  Conn.  4GD  ;  and  referring,  also,  to  Lord  v.  Grow,  39 
Pa.  St.  88  ;  80  Am.  Dec.  504  ;  Hadley  v.  Clinton  etc.  Co.  1*  Ohio  St.  5C2  ; 
82  Am.  Dec.  4,34  ;  Walker  v.  Pue,  57  Aid.  loo.  Consult  further  Dickin- 
son u.  Gay,  7  Allen,  29;  83  Am.  Dec.  606,  n.  6015 ;  Hoe  v.  Sanborn,21 
IS".  Y.  552  ;  78  Am.  Dec.  163, 171 ;  later  chapter  on  LATENT  DKFECTS. 

10  Downing  v.  Dearborn,  77  Me.  4"7,  458,  459.    And  when  such  a 
Intent  defect  becomes  known  to  the  bikers,  they  can  elect  whether 
to  retain  the  goods  and  seek  their  remedy  for  breach  of  warranty,  or 
for  the  deceit,  or  to  repudiate  the  sale  and  restore  the  articles  pur- 
chased :  Downing  v.  Dearborn,  77  Me.  457,459;  referring  to  Marston, 
v.  Knight,  29  Me.  341. 

11  See  Story  on  Sales,  ?  365.    But  compare  Lukens  v.  Freiund,27 
Kan.  W>4;  41   Am.  Rep.  429,  430;  Getty  v.  Rountree,  2  Pian.  379;  2 
Chanel.  28  ;  54  Am.  Dec.  138, 141.    And  see  Howard  v.  Jloey,  23  Wend. 
350;  35  Am.  Dec.  572,574,  n.  5;;5;  quoting,  Harmons  v.  Stone,  5  ]NT.  Y. 
83.    Consult,  also,  discussion  in  Hoe  v.  Sanborn,  21  N.  Y.  552 ;  78  Am. 
Dec.  103, 1C8, 171, 172. 


I  332.  Opportunity  for  inspection, —  Want  of,  etc.  The 
maxim  caveat  emptor  does  not  apply  where  there  is  no 
opportunity  to  inspect  the  commodity,1  or  perhaps  where 
from  the  nature  of  the  article,  or  the  peculiar  character 
of  the  business  in  which  it  is  sold,  and  the  reliance  that 
must  be  placed  on  the  dealer  as  an  expert,  as  on  a  sale 
of  drugs  by  a  druggist,  it  is  shown  that  an  examina- 
tion would  not  be  of  any  avail  to  the  purchaser.2 

Specific  existing  goods.  But  as  to  specific  existing 
goods  capable  of  inspection,  the  buyer  has  the  oppor- 
tunity of  exercising  his  judgment  upon  the  matter,  and 
if  the  result  of  the  inspection  is  unsatisfactory,  or  if  the 
buyer  distrusts  his  own  judgment,  he  may,  if  he  chooses, 
require  a  warranty  ;3  and  there  is  no  implied  warranty 
of  quality  as  to  such  goods,  whose  actual  condition  ia 
equally  open  to  the  inspection  of  either  party.4 


g    333  WARRANTY   OF   QUALITY.  490 

Poisonous  fodder  for  cattle.  Where  without  the  sell- 
er's negligence,  copper  clasps  fell  into  a  sack  of  bran 
which  had  been  bought  for  feeding  cows,  and  were 
swallowed  by  one  of  the  cows  and  poisoned  and  killed 
her,  it  was  held  that  the  case  did  not  come  within  any 
of  the  exceptions  to  the  rule  of  caveat  cmp'or  as  to  fitnecs 
for  special  purpose,  wholesomeness  of  food,  etc.,  and 
that  the  seller  was  not  liable.5 

Conformity  of  goods  to  order.  But  where  a  party  at 
Mobile,  Alabama,  ordered  from  another  at  Council 
Eluffs,  Iowa,  through  the  agent  of  the  latter  at  Mobile, 
"choice  sugar-cured  canvassed  hams,"  and  the  buyer 
had  no  opportunity  to  inspect  them,  but  they  were 
shipped  at  Council  Bluffs, and  payment  demanded  and 
made  while  they  were  in.  transit,  it  was  held  that  the 
hams  were  warranted  to  conform  to  the  order,  and  that 
the  seller  was  liable  if  they  did  not.6 

1  Gardiner  v.  Gray,  4  Camp.  144  ;  as  quoted,  Bennett's  Benjamin 
on  Sales,  §  6.33.    And  see  2  Sehoulor  on   Personal  Property,  £  ".7  ; 
r  forrirg  to  Bea!s  v.  Olmstcud.'Jl  Vt.  114;  iS  Am.  Doc.  150;  Lord  r. 
Grow,  8.)  Pa.  St.  8  J ;  80  Am.  Doc.  504  ;  Pease  v,  Sabin,  38  Vt.  432.    Con- 
sult, also,  Story  on  Sales,  g  363. 

2  Jones  v.  George,  50  Tex.  143 ;  42  Am.  Rep.  689,  690. 

3  Jones  v.  Just,  Law  R.  3  Q.  B.  197. 

4  2  Schouler  on  Personal  Property,  ?  347  ;  citing,  Turner  v.  Muck- 
low,  S  Jur.  N.  S.  870 ;  explained  in  Jones  v.  Just,  Law  II.  3  Q.  B.  li/7  ; 
B-rr  v.  Gibson,  3  Mees.  &  W.  3'^0  ;  stated  and  quoted,  Bennett's  Benja- 
min on  Sales,  l\  6-56,  G!7  ;  Frazivr  r.  Harvey,  34  Conn.  46.);  Rocchi  v, 
S  -liwabacher,  33  La.  An.  1364  ;  Slaughter  v.  Gerson,  13  Wall.  379.    Cor.- 
S'.ilt,  also,  2  Corbiu's  Benjamin  on  Sales,  §  1)66,  n.  23  ;   considering, 
Carson  v.  BaiUie,  10  Pa.  St.  375,  330  ;  57  Am.  Dec.  65!) ;  Lord  v.  Grow,  39 
Pa.  St.  388  ;  80  Am.  Dec.  504  ;  Byrne  v.  Janson,  f.O  Cal.  624  ;  Hunger  v. 
Evans,  38  Ark.  334,  340.    And  compare  Brantley  v,  Thomas,  22  Tex, 
270  ;  73  Am.  Dec.  264, 266. 

5  Lukens?\  Froinnd,27  Kan.  664;  41  Am.  Rep.  429.    But  compare 
French  v.  Vining,  102  Mass.  l«i! ;  3  Am.  Hep.  440. 

6  Forcheimer  v.  Stowart,  fi5  Iowa,  504  ;  54  Am.  Rep.  30,  35.    And 
consult  Brantley  v.  Thomas,  22  Tex.  270  ;  73  Am.  Dec.  264,  266. 

§  333.  Implied  warranty  of  quality. — In  general.  There 
are  various  recognized  cases,  at  least  originally  regarded 
as  exceptional,  where  a  warranty  of  quality  is  implied 
in  sales  of  personal  properly.1 


491  "WARRANTY  OF  QUALITY.  \  3?3 

On  sales  by  sample.  Thus  in  the  case  of  sales  by 
sample,2  there  is  an  implied  warranty  that  the  bulk 
shall  correspond  with  the  sample.3 

On  sale  by  description.  So  on  a  sale  of  an  article  by  a 
particular  designation  or  description,  there  is  an  implied 
warranty  or  undertaking,4  whose  scope  is  not  always 
definitely  determined,  of  correspondence  with  such 
designation  or  description.5 

Of  fitness  for  intended  purpose.  And  in  the  case  of  an 
unascertained  chattel,  or  where  a  chattel  is  to  be  made 
or  supplied  to  the  purchaser's  order,  there  is  an  implied 
warranty  that  it  is  reasonably  fit  for  the  purpose  for 
which  it  is  ordinarily  used,  or  that  it  is  fit  for  the 
special  purpose  intended  by  the  buyer,  if  that  purpose 
be  communicated  to  the  vendor  when  the  order  is 
given.6 

Of  merchantable  character  of  goods.  Furthermore, 
in  the  case  of  goods  not  inspected  by  the  buyer,  and 
particularly  where  the  sale  is  by  description,  there  is 
generally  considered  to  be  an  implied  warranty  or 
undertaking  that  they  are  of  a  merchantable  character.7 

Wholesomeness  of  provisions.  So  the  law  is  frequently 
expressed  to  be  that  on  a  sale  of  provisions  for  domestic 
use,  there  is  an  implied  warranty  that  they  are  sound 
and  wholesome.8 

Supplying  exact  thing  ordered.  But  the  law  is  declared 
to  be  well  settled  that  when  a  known,  described,  and  de- 
fined article  is  ordered,  even  of  a  manufacturer,  al- 
though it  is  stated  to  be  required  by  the  purchaser  for  a 
particular  purpose,  yet  if  the  known,  defined,  and  de- 
scribed thing  be  actually  supplied,  there  is  no  implied 
warranty  that  it  shall  answer  the  particular  purpose 
intended  by  the  buyer,9  but  in  such  case  the  purchaser 
takes  upon  himself  the  risk  of  its  effecting  its  purpose.10 
And  where  the  contract  was  to  supply  Keystone  coal, 


\    333  WARRANTY   OF  Q.UALITY.  492 

fine,  and  the  run  of  the  mine,  and  there  was  nothing 
else  in  the  terms  of  the  contract  to  indicate  the  quality 
stipulated  for,  it  was  held  that  there  was  no  foundation 
for  an  implied  warranty,  as  when  the  coal  was  delivered 
the  buyer  had  ample  opportunity  to  ascertain  the  quality 
by  an  inspection.11 

Sale  of  specific  fertilizer,  etc.  So  on  a  sale  of  a  specific 
fertilizer,  there  is  in  the  absence  of  fraud,  usually,  no 
implied  warranty  of  quality,12  except  so  far  as  such  a 
warranty  may  arise  under  the  statutes  of  some  of  the 
States.13 

1  See  succeeding  paragraphs  of  section.  And  compare  Jones  v. 
Just,  Law  R.  3  Q.  B.  197  ;  Getty  v.  Rountree,  2  Finn.  b7J  ;  2  Chand. 


Works  Co.  v.  Keystone  Coal  Co.  65  Md.  -547 ;  5  At!.  Rep.  253.  War- 
ranty implied  from  usage  of  trade :  22  Am.  Law  Reg.  X.  S.  226,  or 
BLldle  on  Chattel  Warranties,  \\  219,  223;  reviewing  Clark  v.  Baker, 
11  Met.  1S6  ;  45  Am.  Dec.  199  ;  Snowden  v.  Warden,  3  Rawle,  101 ;  Fat- 
man  ?'.  Thompson,  2  Disn.  4S2 ;  Boorman  v.  Jenkins,  12  Wend.  5G6  ;  27 
Am.  Dec.  153  ;  Dodd  r.  Farlow,  11  Allen,  426  ;  Wetherill  v.  IS'eilson,  20 
Pa.  St.  448  ;  59  Am.  Dec.  741 ;  Barnard  v.  Kellogg,  19  Wall.  383. 

2  There  may  be  what  is  termed  falsa  demonstratio,  as  in  the  sale 
of  goods  by  samples  :   Warren  Glass  Works  Co.  v.  Keystone  Coal  Co. 
65  Md.  547  ;  5  At!.  Hop.  253.    .Sale  by  sample  discussed:  Brantlcy  v. 
Thomas,  22  Tex.  270  ;  73  Am.  Dec.  264,  265,  266,  n.  268  ;  Barton  v.  Kane, 
17  Wis.  38  ;  84  Am.  Dec.  723;  note  to  Bradford  v.  Manly,  13  Mass.  1S8  ; 
7  Am.  Dec.  125-1:52  ;  note  to  Brigg  r.  Hilton,  3  N.  E.  Rep.  58  ;  Reynolds 
v.  Palmer,  21  Fed.  Rep.  433,  435,  n.  454. 

3  See  Bradford  v.  Manly,  13  Mass.  138;  7  Am.  Dec.  122,  n.  125; 
Brantlcy  v.  Thomas,  22  Tex.  270 ;  73  Am.  Dec.  264, 2U5, 2;>6  ;  1  Parsons  on 
Contracts,  585  ;  Parkc  r  v.  Palmer,  4  Barn.  <fe  Aid.  357 ;  Parkinson  v. 
Lee,  2  East,  314;  Campbell  on  Sales,  305;  Bennett's  Benjamin  on 
Sales,  §  6^8  ;  2  Corbin's  Benjamin  on  Sales,  $  06%  n.  ':6  ;  Story  on  Sales, 
§  376  ;  Lukens  v.  Froiund,  27  Kan.  634  ;  41  Am.  Rep.  42:), 4 :0 ;  2  Schouler 
on  Personal  Property,  £  SCO ;  citing,  Williams  v.  .Spafrord,  8  Pick.  2CO ; 
Beirne  v.  Dord,  1  Sold.  95 ;  55  Am.  Dec.  321  ;  Gunthor  v.  Atwelt,  19  Md. 
157  ;  Hanson  v.  Busse,  45  111.  4C6 ;  Day  r.  Raguct,  14  Minn.  273.    But 
soe  Boyd  r.  Wilson,  83  Pa.  St.  319  ;  24  Am.  Rep.  176  ;  Mining  Co.  v. 
Jones,  108  Pa.  St.  55,  65. 


25  A 
Rep. 


4  See  Korrington  v.  Wright,  115  U.  S.  188,  203  ;  6  Sup.  Ct.  Rep.  12  ; 
Am.  Law  Reg.  N.  S.  47  ;  Filley  v.  Pope,  115  LT.  S.  21:5,  210  ;  6  Sup.  Ct. 
>p.  19  ;  Pope  v.  Allis,  115  U.  S.  363,  372  ;  6  Sup.  Ct.  Rep.  69. 

5  See  Jones  v.  George,  61  Tex.  345  ;  48  Am.  Rep.  280,  281,  282 ;  Wol- 
cott  v.  Mount,  36  N.  J.  L.  262;  13  Am.   Rc-p.  4J8,  440-442;   S.   C.  38 
N.  .T.  L.  457  ;  20  Am.  Rep.       .    And  consult  Hawkins  v.  Pemberton, 
51  X.  Y.  198,  204  ;  10  Am.  Rep.  595;  Henshaw  v.  Robins,  9  Met.  83  ;  43 
Am.  Dec.  367,  n.  372 ;  Borrekins  v.  Bevan,  3  Rawle,  23 ;  23  Am.  Dec. 
85  ;  Osgood  v.  Lewis,  2  Har.  &  G.  495  ;  18  Am.  Dec.  317  J  2  Schouler  on 


493  WARRANTY   OF   QUALITY.  2    333 


6  See  Bennett's  Benjamin  on  Sales,  g  645  ;  2  Schouler  on  Personal 
Property,  $  34(>;  22  Am.  Law  Reg.  N.  S.  225.    Consult  further,  note  to 
Reynolds  v.  Palmer.  21  Fed.  Hep.  443;  Jones  v.  Just,  Law  It.  3  Q.  B. 
197;  Randall  v.  Newson,  Law  K.  2  Q,.  B.  1).  102  ;  1J  Ei:g.  llcp.  24,;; 
Bragg  v.  Morrill,  49  Vt.  45 ;  24  Am.  Hep.  102,  n.  10-1  ;  Lukens  v.  Fix ir.;:d, 
27  Kan.  634  ;  41  Am.  Hep.  429,  431 ;  Port  Carbon  Iron  Co.  v.  Groves,  68 
Pa.  St.  149,  151;  Robinson  Machine  Works  v.  Chandler,  56  Ind.  cr.> ; 
Getty  v.  Rountree,  2  Finn.  379 ;  2  Chand.  23  ;  54  Am.  Dec.  O,  Ml ;  1  'I -Ic 
v.  Tank,  12  Wis.  276;  78  Am.  Dec.  737,  744;  Beals  v.  Olmstead,  21  Vt. 
114  ;  53  Am.  Dec.  150  ;  Best  v.  Flint,  58  Vt.  543 ;  56  Am.  Rep.  570,  572  ; 
Bartlett  v.  Hoppock,  34  N.  Y.  118  ;  88  Am.  Dec.  428,  431. 

7  See  noto  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  4-11  ;  Gardiner  v. 
Gray,  4  Camp.  1-14  ;  Jones  v.  Just,  Law  R.  3  Q.  B.  li/7  ;  Merriara  v. 
Fial J,  24  Wis.  640 ;  29  Wis.  040 ;  29  Wis.  593 ;  39  Wis.  578 ;  Bennett's 
Benjamin  on  Sales,  \\  65«-6CO  ;  2  Corbin's  Benjamin  on  Sales,  $  W3, 
n.  32  ;  2  Schouler  on  Personal  Property,  \\  354-357.    Thus  it  is  said  to 
have  been  held  that  under  a  contract  to  supply  goods  of  a  specified 
description,  which  the  buyer  has  had  no  opportunity  of  inspecting, 
the  goods  must  not  only  in  fact  correspond  to  the  specific  description, 
but  must  be  salable  or  merchantable  under  that  description  :   Warren 
Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547;  5  Atl.  Rep.  253. 
And  consult  Reed  v.  Randall,  29  N.  Y.  358  ;  86  Am.  Dec.  3C5, 307,  n.  312 ; 
Kohl  v.  Lindlev,  39  111.  195  ;  89  Am.  Dec.  294,  301 ;  Ryan  v.  Ulmer,  108 
Pa.  St.  332  ;  56  Am.  Rep.  210,  211. 

8  See  Lukene  v.  Freiund,  27  Kan.  664 ;  41  Am.  Rep.  420,  4C2  ;  note 
to  Reynolds  v.  Palmer,  21  Fed.  Rep.  449 ;  Van  Bracki in  v.  Fonda,  12 
Johns.  468  ;  7  Am.  Dec.  3C9 ;  referring  to  note  to  Emerson  v.  Brigham, 
10  Mass.  107  ;  6  Am.  Dec.  117.    And  consult  full  discussion  of  subject 
in  note  to  Hunter  v.  State,  1  Head,  160 ;  73  Am.  Dec.  165. 

9  See  citations  in  next  note. 

10  Rasin  v.  Conley,  58  Md.  65  ;  as  stated,  Warren  Glass  Works  Co. 
v.  Keystone  Coal  Co.  65  Md.  547 ;  5  Atl.  Rep.  253 ;  declaring  rule  of 
caveat  e.nptor  to  have  been  sanctioned  in  Hyatt  v.  Boyle,  5  Gill  &  J. 
120 ;  25  Am.  Dec.  273 ;  Gunther  v.  Atwell,  19  Md.  171 ;  Rice  ?>.  Forsyth, 

41  Md.  404.    And  see  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  446. 

11  Warren  Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547 ;  5  Alt. 
R^p.  253  ;  relying  upon  Jones  v.  Just,  Law  R.  3  Q.  B.  197. 

12  Walker  v.  Pue,  57  Md.  155. 

13  Wilcox  v.  Owens,  64  Ga.  601.    And  see  Jones  v.  George,  56  Tex. 
14J  ;  42  Am.  Rep.  639  ;  S.  C.  61  Tex.  345 ;  48  Am.  Rep.  280  ;  2  Schouk  r 
on  Personal  Property,  §  347,  p.  344,  n.    Sale  of  defective  or  second- 
hand chattel  as  such :  Loop  v.  Litchfield,  42  N.  Y.  351 ;  1  Am.  Rep 
543 ;  2  Schouler  on  Personal  Property,  §  366  ;  referring,  also,  to  Holden 
v.  Clancy,  58  Barb.  590.    And  see  Lukens  v.  Freiund,  27  Kan.  6-4  ;  41 
Am.  Rep.  429,  4:>o,  4-">4.    Express  warranty  may  sometimes  re-enforce 
implied  (See  Bigge  v.  Parkinson,  7  Hurl.  <fc  N.  5-">) ;  but  generally 
excludes  implied  :  See  Parkinson  v.  Lee,  2  East,  314  ;  Dickson  v. 
Ziziana,  10    Com.  B.  602  ;    Bennett's  Benjamin  on  Sales,  g  662  ;    2 
Schouler  on  Personal  Property,  \  367  ;  citing,  also,  Derning  v.  Foster, 

42  N.  H.  165. 


NEWMAKK  SALES.— 42. 


LES  BY   SAMPLE.  494 


CHAPTER  XXY. 

SALES   BY   SAMPLE. 

?  334.  Exhibition  of  sample. 

\  335.  Opportunity  to  examine  bulk. 

§  336.  Scope  of  warranty  or  undertaking. 

?  337.  Conclusiveness  of  acceptance. 

g  338.  Finality  of  inspection. 

\  339.  Liability  of  manufacturer. 

\  340.  Buyer's  remedies. 

I  3S4.  Exhibition  of  sample.  —  Correspondence  of  bulk 
iviili  sample.  A  sale  by  sample  is  said  to  be  made  where 
a  small  quantity  of  any  commodity  is  exhibited  by  the 
vendor  as  a  fair  specimen  of  a  larger  quantity  called  the 
bulk,  which  is  not  present,  and  there  is  no  opportunity 
for  a  personal  examination.1  And  one  of  the  most  gen- 
eral of  implied  warranties  in  sales  of  personal  property, 
is  that  of  correspondence  of  the  bulk  with  the  sample,2 
in  the  case  of  sales  by  sample.3 

When  does  not  make  sale  by  sample.  But  the  mere  ex- 
hibition of  a  sample  at  the  time  of  the  sale,  does  not  neces- 
sarily make  the  transaction  a  sale  by  sample,4  so  as  to 
subject  the  seller  to  an  implied  warranty  as  to  the  nature 
and  quality  of  the  goods ; 5  for  the  sample  may  be  ex- 
hibited merely  to  enable  the  purchaser  to  form  a  judg- 
ment upon  the  character  of  the  commodity,6  and  the 
production  of  the  sample  may  amount  only  to  a  repre- 
sentation that  the  sample  exhibited  has  been  taken  from 
tlie  bulk  of  the  commodity  in  the  usual  way.7  So  the 
vendor  may  show  a  sample,  but  decline  to  sell  by  it, 
and  require  the  purchaser  to  inspect  the  bulk  at  his  own 
risk  ;8  or  the  buyer  may  decline  to  trust  to  the  sample 
and  the  implied  warranty,  and  require  an  express  war- 
ranty,9 which  excludes  any  implied  warranty.10 


495  SALES  BY  SAMPLE.  g    334 

When  makes  sale  by  sample.  But  if  the  contract  be 
connected  with  the  sample  by  the  circumstances  attend- 
ing the  sale,  and  refer  to  the  sample,  which  is  exhibited 
as  an  inducement  to  the  contract,  the  transaction  may 
be  a  sale  by  sample,11  so  that  as  a  necessary  consequence 
the  seller  warrants  the  bulk  of  the  goods  to  correspond 
with  the  specimen  exhibited  as  a  sample.12  And  i*  is  said 
that  there  must  be  an  agreement  to  sell  by  sample,  or 
al;  least  an  understanding  of  the  parties  that  the  sale  is 
to  be  by  sample.13 

Question  for  jury.  Whether  a  sale  be  a  sale  by  sample 
or  not,  is  a  question  of  fact  for  the  jury  to  find  from  the 
evidence  in  each  case ; 14  and  to  authorize  such  a  finding, 
it  is  said  that  the  evidence  must  satisfactorily  show  that 
the  parties  contracted  with  sole  reference  to  the  sample 
exhibited.15 

1  Reynolds  v.  Palmer,  21  Fed.  Rep.  428, 435.    But  compare  Beirne 
v.  Dord,  5  N.  Y.  95;  55  Am.  Dec.  321;  §  335,  on  OPPORTUNITY  TO 
EXAMIN-K  BULK.    And  consult  2  Bouvier  Law  Diet,  (,15th  eel.)  611; 
WUfieid's  Words  etc.  551 ;  quoting,  Webber's  Case,  33  Gratt.  904. 

2  See  Bradford  v.  Manly.  13  Mass.  IDS;  7  Am.  Dec.  122,  123,  with 
note,  125  ;  Bruntley  v.  ri  nonius,  22  Tex.  270  ;  73  Am.  Dec.  264,  2G5, 266. 

3  See  Parker  v.  Palmer,  4  Barn.  &  Aid.  387 ;  Parkinson  v.  Lee,  2 
East,  314;   Bennett's  Benjarni.i  on  Sales,  26-18;  referring,  also,  to 
Azv;mar  v.  Casella,  Law  R.  2  Com.  P.  44(5,  and  McMulJcu  r.  Helberg,  4 
Law  R.  Ir.  100.    Consult,  also,  Campbell  on  Sales,  305;  22  Am.  Law 
R'g.  N.  S.  239;  Story  on  Sales,  §376;  2  Schouler  on  Personal  Prop- 
erty, \  :W) ;  citing,  Gunther  v.  Atwell,  19  Md.  157  ;  Williams  v.  Spaf- 
f  jrd,8  Pi3k.  250  ;  Day  v.  Raguet,  14  Minn.  273 ;  Beirne  v.  Dord,  5  N.  Y. 
95  ;  f>5  Am.  Dec.  321 ;  Hanson  v.  Busse,  45  III.  4r,G.    But  compare  Boyd 
?>.  Wilson,  83  Pa.  St.  319  ;  24  Am.  Rep.  176  ;  Mining  Co.  v.  Jones,  108  Pa, 
St.  55,  65. 

4  Ilargous  v.  Stone,  5  N.  Y.  73,  85.    And  see  Barnard  v.  Kellogg,  6 
Blutchf.  27J;  10  Wall.  383;  Ames  v.  Jones,  77  N.  Y.  614;  Atv/atc  r  v. 
Clancy,  107  Muss.  ?.c:) ;  note  to  Bradford  v.  Manly,  7  Am.  Dec.  12(5 ;  note 
to  Reynolds  v.  Palmer,  21  Fed.  Rep.  455. 

5  Beirne  v.  Dord,  5  N.  Y.  95  ;  55  Am.  Dec.  321. 

6  See  Gardiner  v.  Gray,  4  Camp.  144  ;  Beirne  v.  Dord,  5  N.  Y.  95  ;  55 
Am,  Dec.  321. 

7  Hargous  v.  Stone,  5  N.  Y.  73,  85. 

8  Compare  Salisbury  v.  Stainer,  19  Wend,  159  ;  32  Am.  Dec.  407. 

0  S-.ilo  by  sample  itself  claimed  to  constitute  an  express  warranty : 
Note  to  Bruuiord  v.  Manly,  7  Am.  Dec.  126. 

10  See  M'Mullen  v.  Helberg,  4  Law  R.  Ir.  100 ;  Tye  v.  Finmore,  3 
Camn.  <r>: ;  Powell  v.  HortoM,  2  Bin?!:.  N.c.  60^.  Ahs-'iicc  of  reference 
to  sample  in  memorandum  of  contract :  Meyer  v.  EvertA,  4  Camp.  22, 


§   3S5  SALES   BY  SAMPLE.  496 

11  Beirne  v.  Dord,  5  N.  Y.  95 ;  55  Am.  Dec.  321.    And  see  Day  v. 
R.  guet,  14  Minn.  273. 

12  Beirne  v.  Dord,  5  N.  Y.  95  ;  55  Am.  Dec.  321. 

13  Ilargous  v.  Stone,  5  N.  Y.  73,  85.    To  constitute  a  sale  by  sample, 
it  must  appear  that  the  parties  contracted  solely  with  reference  to 
the  sample,  and  mutually  understood  that  they  were  so  dealing  wi:h 
regard  to  the  quality  of  the  bulk :  Reynolds  r.  Palmer,  21  Fed.  Hep. 
433,  4."5.    And  see  Day  v.  Raguet,  14  Minn.  273,  232. 

14  See  Atwood  v.  Clancy,  107  Mass.  369.    Parol  evidence  to  show 
that  sale  was  by  sample  :  See  Bradford  v.  Manly,  13  Mass.  138  ;  7  Am. 
Dec.  122, 123,  n.  129. 

15  Beirne  v .  Dord,  5  X.  Y.  95  ;  55  Am.  Dec.  321.    The  evidence  must 
show  that  the  parties  mutually  understood  that  they  were  dealing 
with  the  sample  as  an  agreement  or  understanding  that  the  bulk  of 
the  commodity  corresponded  with  it ;  or  in  other  words,  the  evi- 
dence mr.st  be  such  as  to  authorize  the  jury,  under  all  the  circum- 
stances of  the  case,  to  find  that  the  sale  was  intended  by  the  partic  s 
as  a  sale  by  sample  :  Beirne  v.  Dord,  5  N.  Y.  9> ;  55  Am.  Dec.  321. 
And  see  Day  v.  Baguet,  14  Minn.  273.    Consult  further  upon  subject 
of  section, following  sources  of  most  of  foregoing  matter :  22  Am.  Law 
Reg.  N.  S.  243,  244,  or  Biddle  on  Chattel  Warranties,  \\  213-218  ;  Ben- 
nett's Benjamin  on  Sales,  §  649 ;  2  Corbin's  Benjamin  on  Sales,  §  G70, 
n.  27.     And  see  Campbell  on  Sales,  3C7  ;   Story  on  Sales,  §  r,7G  ;  2 
R"houlor  on  Personal  Property,  \  359  ;  note  to  Reynolds  v.  Palmer,  21 
Feel.  Rep.  455  ;  note  to  Bradford  v.  Manly,  7  Fed.  Dec.  126. 

$  CC5.  Opportunity  to  examine  bulk.  —  Examination 
not  practicable  or  convenient.1  It  furnishes  no  suffi- 
cient ground  of  itself  to  say  that  a  sale  is  by  sample, 
because  a  personal  examination  of  the  bulk  of  the 
goods  by  the  purchaser  at  the  time  of  sale  is  not 
practicable  or  convenient.2  For  though  the  want  of 
an  opportunity,  from  whatever  cause,  for  such  an 
examination,  is  doubtless  a  strong  fact  in  reference 
to  the  question  of  the  character  of  the  sale,  as  to 
whether  it  is  made  by  sample  or  not,  yet  it  is  never- 
theless true  that  a  contract  of  sale  by  sample  may  bo 
made,  whether  such  examination  bo  practicable  or  not, 
if  the  parties  so  agree.3 

Examination  of  sample  as  essence  of  transaction.  And 
if  the  examination  merely  of  the  sample  be  shown  to 
be  the  point  on  which  the  transaction  turns,  there  may 
bo  a  sale  by  sample,  although  the  chattels  in  bulk 
were  where  the  buyer  might  have  inspected  them,  or 
the  sample  was  drawn  by  the  seller  from  the  bulk  in 


497  SALES   BY   SAMPLE.  \   336 

the  buyer's  presence,  or  the  buyer  even  inspected  the 
bulk  pending  the  negotiation  in  a  casual  way,  and 
without  relying  upon  such  inspection  as  the  induce- 
ment of  his  purchase,  or  being  understood  so  to 
rely.4 

1  Sales  by  sample  are  commonly  made  when  it  is  not  convenient 
for  the  purchaser  t~>  ree  the  bulk  of  the  commodity,  and  one  of  the 
main  reasons  why  the  law  implies  a  warranty  is  said  to  be  that  there 
is  not  an  opportunity  for  a  personal  examination  cf  the  article  which 
the  sample  is  shown  to  represent:  Reynolds  v.  Palmer,  21  Fed.  Rep. 
4J3,  4^5.    And  see  note  to  Bradford  v.  Manly,  7  Am.  Dec.  129. 

2  Beirne  v.  Dord,  5  N.  Y.  95  ;  54  Am.  Dec.  321. 

3  Beirne  v.  Dord,  5  N.  Y.  95 ;  55  Am.  Dec.  321.     But  where  the 
acts  and  declarations  of  the  parties  in  making  the  contract  for  the 
sala  of  the  goods  are  of  doubtful  construction,  evidence  that  it  was 
impracticable  or  inconvenient  to  examine  the  bulk  of  the  goods 
would  be  proper,  and  in  connection  with  evidence  of  other  circum- 
stances attending  the  transaction,  might  aid  in  coming  to  a  correct 
conclusion  in  respect  to  the  true  character  of  the  contract :  Beirne 
v.  Dord,  5  N.  Y.  95;  55  Am.  Dec.  321.    See  quotation  of  this  case  in  22 
Am.  Law  Reg.  N.  S.  244,  or  Biddle  on  Chattel  Warranties,  \  213. 

4  2  Schouler  on  Personal  Property,  §  3"O.     And  compare  Wil- 
liams v.  Spafford,  8  Pick.  259,  with  Salisbury  v.  Haines,  I'J  Wend.  159  ; 
32  Am.  Dec.  437. 

$  336.  Scope  of  warranty  or  undertaking.  —  Correspond- 
ence in  quality.  By  offering  the  specimen  or  sample 
alone  for  present  inspection,  the  seller  undertakes  to 
assure  the  buyer  that  the  bulk  will  be  found  like  it  in 
kind  and  quality.1  Thus  in  a  sale  of  goods  "by  sample,2 
a  warranty  is  quite  universally  held  to  be  implied,  that 
the  bulk  shall  correspond  in  quality  with  the  sample.3 

Correspondence  in  kind.  And  there  is  said  to  be  in 
the  case  of  unascertained  goods,  the  further  undertak- 
ing by  the  seller,4  sometimes  regarded  as  a  condition 
rather  than  a  warranty,5  that  the  bulk  shall  correspond 
With  the  sample  in  kind6  and  character.7 

Opportunity  of  comparison.  So  it  is  an  implied  term 
of  the  contract  that  the  buyer  shall  have  a  fair  oppor- 
tunity to  compare  the  bulk  with  the  sample,8  so  as  to 
test  the  substantial  correspondence  between  them  in 
nature  and  quality.9 


§    336  SALES   BY   SAMPLE.  498 

Merchantable  character.  But  in  Pennsylvania,  the 
peculiar  doctrine 10  seenis  to  be  maintained  that  a  sale 
of  chattels  by  the  production  of  a  sample,  in  the  absence 
of  fraud  or  circumstances  to  fix  the  character  of  the 
sample  as  a  standard  of  quality,  is  not  attended  by  any 
implied  warranty  of  the  quality,  but  the  sample  merely 
becomes  a  guaranty  that  the  articles  to  be  delivered  shall 
follow  its  kind  and  be  simply  merchantable,11  though 
a  stipulation  that  the  quality  of  ore  to  be  delivered 
should  be  up  to  sample,  may  become  a  term  of  the  con- 
tract and  enforcible  as  such.12  And  on  a  sale  by  sample, 
there  may  also  be  an  implied  warranty  of  merchantable 
character  deducible  from  the  facts  and  circumstances 
of  the  case.13 

Warranty  concerning  analysis.  So  in  a  sale  of  guano, 
where  the  buyer  had  asked  for  a  *'  guaranteed  analysis  " 
to  accompany  the  sample,  and  a  printed  analysis  signed 
by  the  vendor  had  been  sent  with  the  sample,  the 
vendor  was  held  to  have  warranted  not  only  that  the 
bulk  was  equal  to  sample,  but  that  the  analysis,  at 
the  time  it  was  made,  was  a  fair  analysis  of  the  bulk 
out  of  which  the  guano  was  supplied.14 

Mistake  in  drawing  sample.  And  where  by  mistake 
a  sample  was  taken  from  the  cargo  of  the  wrong  vessel, 
it  was  held  that  as  the  vendor  intended  to  sell  one 
bulk,  and  the  purchaser  to  buy  another,  there  was  no 
contract  between  them.15 

"  Average  sample."  In  the  case  of  sales  by  "  average 
sample,"  where  samples  or  specimens  drawn  from 
various  packages  are  mixed  by  the  seller,  there  is  no 
right  of  rejection  or  recovery  of  purchase  price  because 
some  of  the  packages  are  inferior  to  the  average ;  but 
the  true  test  is  whether,  if  the  contents  of  all  the  pack- 
ages were  mixed  together,  the  quality  of  the  bulk  so 
formed  would  equal  the  average  sample.16 


499  SALES  BY  SAMPLE.  g   336 

1  2  Schonler  on  Personal  Property,  §  360.    Thus  it  is  said  that 
stri?tly  speaking  in  a  contract  of  sale  by  sample  there  is  not  a  war- 
ranty of  quality,  but  an  agreement  of  the  seller  to  deliver,  and  of  the 
buyer  to  accept  goods  of  the  same  kind  and  quality  with  the  sample : 
Gtmther  r.  Atwell,  Is)  Md.  157.    So  it  is  declared  that  when  a  contract 
far>the  sale  of  goods  is  made  by  sample,  it  amounts  to  an  undertak- 
ing on  the  part  of  the  seller  with  the  buyer  that  all  the  goods  are 
similar,  both  in  nature  and  quality,  to  those  exhibited :  Pope  v.  Allis, 
115  U.  S.  363,  372;  6  Sup.  Ct.  Rep.  69,  72,  73.    Construction  of  written 
contract  in  favor  of    view  that    bulk  of    cargo  corresponds  with 
samples  :  Bussel  v.  Nicolopulo,  8  Com.  B.  N.  S.  362. 

2  See  generally  note  to  Dickinson  v.  Gay,  83  Am.  Dec.  663. 

3  See  Parker  v.  Palmer,  4  Barn.  &  Aid.  357  ;  Parkinson  v.  Lee,  2 
East,  314;  Williams  v.  Spafford,  8  Pick.  2,50  ;  Boirne  v.  Dord,  5  N.  Y. 
93 ;  55  Am.  Dec.  321 ;  Gunther  v.  Atwell,  19  Md.  157 ;  Hanson  v.  Busso, 
45  111.  4J6  ;  Day  v.  Raguet,  14  Minn.  273.    Sources  of  these  citations :  2 
Schouler  on  Personal  Property,  §  360.    And  see  Bennett's  Benjamin 
on  Sales,  £64S;  2  Corbin's  Benjamin  on  Sales,  §  069,  n.  26;  Story  en 
Sales,  §  :-:76 ;  22  Am.  Law  Reg.  N.  S.  239,  or  Biddle  on  Chattel  War- 
ranties, §  208 ;  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  454. 

4  See  Gunther  v.  Atwell,  19  Md.  157. 

5  Compare  Campbell  on  Sales,  306. 

6  See  Bradford  v.  Manly,  13  Mass.  138 ;  7  Am.  Dec.  122. 

7  2  Schouler  on  Personal  Property,  \  360.    And  see  Bannerman  v. 
Wright,  10  Com.  L>.  N.  iS.  8^4.    Consult,  also,  Azemar  v.  Casella,  Law  R. 
2  Com.  P.  431,  677  ;  Buck  r.  Levy,  101  N.  Y.  511,  514 ;  5  N.  E.  Rep.  3^5. 
But  compare  Carter  v.  Crick,  4  Hurl.  &  N.  412. 

8  See  Lorymer  v.  Smith,  1  Barn.  &  C.  1. 

9  2  Schouler  on  Personal  Property,  \  360.    And  see  Bennett's  Ben- 
jamin oa  Sales,  £  648.    Jf  the  buyer  refuses  to  accept  goods  sold  by 
sample,  the  seller  in  a  suit  for  the  price,  must  prove  that  the  goods 
tendered  were  equal  to  the  sample :  Merriman  r.  Chapman,  32  Conn. 
146  ;  as  stated,  2  Corbin's  Benjamin  on  Sales,  g  92J,  n.  26. 

10  See  Mining  Co.  v.  Jones,  108  Pa.  St.  55,  65. 

11  Boyd  v.  Wilson,  83  Pa.  St.  319;  24  Am.  Rop.  376 ;  as  quoted,  22 
Am.   Law  Reg.   N.  S.  240,  or  Biddle  on  Chattel  Warranties,  g  2Us». 
Deducing  result  from  following  cases  :  Borrekins  v.  Bevan,  3  Rawle, 
23  ;  23  Am.  Dec.  85  ;  Jennings  v.  Gratz,  3  Rawle,  168  ;  23  Am.  Dec.  Ill  ; 
Kirk  r.  Nice,  2  Watts,  367;  McFarland  v.  Newman,  9  Watts,  55;  34 
Am.  Dec.  4.)7  ;  Fraley  v.  Bispham,  10  Pa.  St.  320  ;  51  Am.  Dec.  486 ; 
Carson  v.  Baillie,  19  Pa.  St.  375;  57  Am.  Dec.  6.39  ;  Wetherill  v.  Neil- 
son,  20  Pa.  St.  4-18  ;  59  Am.  Dec.  741 ;  Eagan  v.  Call,  34  Pa.  St.  236  ;  75 
Am.  Doc.  6.33  ;  Weimer  v.  Clement,  1  Wright,  147  ;  Whitaker  v.  East- 
wick,  75  Pa.  St.  229.    See  note  to  Bradford  v.  Manly,  7  Am.  Dec.  127. 

12  Mining  Co.  v.  Jones,  108  Pa.  St.  55,  64-66. 

13  See  Moody  v.  Gregson,  Law  R.  4  Ex.  49.    And  consult  note  to 
Bradford  v.  Manly,  7  Am.  Dec.  128, 129  ;  note  to  Reynolds  r.  Palmer 
21  Fed.  Rep.  454. 

14  Towerson  v.  Aspatria  Agricultural  Society,  27  L.  T.  N.  S.  276. 

15  Mogaw  v.  Molloy,  2  Law  R.  Ir.  530.    See  statements  of  these 
oases  in  Bennett's  Benjamin  on  Sales,  \\  650  a,  667. 

16  See  Leonard  v.  Fowler,  44  N.  Y.  289;  2  Schouler  on  Personal 
Property,  \  .""I ;  Bennett's  Benjamin  on  Sales,  \  654 ;   citing,  also 
JS3hnitzer  v.  Oriental  Print  Works,  114  Mass.  123. 


g    337  SALES   BY   SAMPLE.  500 

$  337.  Conclusiveness  of  acceptance.  —  After  final  ex- 
amination. In  a  sale  of  goods  by  sample,  the  rights  of 
the  buyer  under  the  contract  are  concluded  after  he 
has  made  such  final  examinations  as  he  thinks  fit,  no 
matter  how  careless  in  character,  and  knowingly  ac- 
cepted the  goods  as  being  of  the  kind  and  quality  called 
for  by  the  contract.1 

Fraudulent  prevention  or  hindrance  of  examination. 
But  the  buyer's  rights  under  the  contract  are  left  un- 
impaired by  any  acceptance  which  is  induced  by  fraud 
or  artifice,  such  as  prevented  or  hindered  a  proper 
examination.2 

Acceptance  of  part.  Nor  can  the  buyer's  acceptance 
of  part  on  delivery,  as  corresponding  with  the  sample, 
prevent  him  from  rejecting  wThat  is  subsequently  de- 
livered under  the  same  contract.3 

Under  executory  contracts.  So  where  there  was  an 
executory  contract  for  the  sale  of  cloths  by  samples 
which  were  sound  and  perfect,  the  cloths  being  repre- 
sented to  be  of  similar  fabric  and  similar  quality,  equal 
in  every  respect  to  the  samples,  it  was  held  that  accept- 
ance of  the  cloths  after  opportunity  for  their  examina- 
tion did  not  preclude  a  claim  and  recovery  of  damages 
for  breach  of  warranty.4  And  the  doctrine  that  a 
warranty  upon  an  executory  contract  of  sale  survives 
acceptance,5  has  also  been  applied  to  an  action  to  re- 
cover damages  for  breach  of  warranty  upon  a  sale  of 
tobacco  by  sample,  where  it  was  represented  that  the 
sample  was  a  true  sample  of  the  tobacco  sold,  and  that 
tlie  tobacco  was  not  only  as  good  as  the  sample,  but 
good,  sound,  and  all  right.6 


2    See  Dutchess  Co.  v.  Harding,  49  N.  Y.  321 ;  Mody  v.  Gregson. 
Law  K.  4  Ex.  49. 


501  SALES   BY  SAMPLE.  §$   338-339 

3  Hubbarcl  v.  George,  49  111.  275  ;  as  stated,  2  Schouler  on  Personal 
Property,  \  ^62,  whence  preceding  paragraph  also  derived.    And  see 
Farmer  v.  Gray,  20  Neb.  401,  403. 

4  Briggs  v.  Hilton,  99  N.  Y.  517 ;  52  Am.  Hep.  63. 

5  Briggs  v.  Hilton,  99  N.  Y.  517  ;  52  Am.  Kep.  63. 

6  Kent  v.  Friedman,  101  N.  Y.  616 ;  3  N.  E.  Kep.  905 ;  affirming,  30 
Hun,  222,  mem. 

\  £38.  Finality  of  inspection.  —  By  official  inspector. 
Under  some  circumstances,  it  may  be  a  reasonable 
inference  from  the  contract  that  the  sale  shall  take  full 
effect  upon  the  completion  of  inspection  by  some  third 
person,  such  as  an  official  inspector,  without  awaiting 
any  special  examination  by  the  buyer  himself.1 

Subsequent  to  original  delivery.  And  in  a  case  of  a 
contract  between  private  parties  for  the  sale  by  manu- 
facturers of  shoes  for  army  use,  where  the  soles  turned 
out  to  contain  paper,  it  was  laid  down  that  if  the  time 
of  inspection,  as  agreed  on,  be  subsequent  to  the  time 
agreed  upon  for  the  delivery  of  the  goods,  or  if  the  place 
of  inspection,  as  agreed  upon,  be  different  from  the 
place  of  delivery,  the  purchaser  may,  upon  inspection 
at  such  stipulated  time  and  place,  if  the  goods  be  not 
equal  to  the  sample,  return  them  then  and  thereon  the 
hands  of  the  seller.2 

1  See  Gunther  v.  Atwell,  19  Md.  157. 

2  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438;  3  Eng.  Rep.  328; 
stated  at  length,  Bennett's  Benjamin  on  Sales,  §  (J51.    Basis  of  fore- 
g./hig  matter:  2  Schouler  on  Personal  Property,  \  363, referring  to  the 
si  me  head  the  following  case,  where  bullets  were  sold  to  State 
authorities  under  an  agreement  which  allowed  an  opportunity  for 
full  Inspection  of  the  property,  even  after  its  formal  delivery  :  Mess- 
more  v.  N.  Y.  Shot  Co.  40  N.  Y.  422. 

§  339,  Liability  of  manufacturer,  —  Fraudulent  knowl- 
edge of  defects.  In  regard  to  the  bearing  of  intentional 
fraud  upon  sample  sales  of  defective  goods,  there  seems 
to  be  a  distinction  in  favor  of  an  inference  of  knowledge 
of  defects  in  the  case  of  a  manufacturer  or  grower  as 
distinguished  from  a  dealer  supplying  goods.1 


f    340  SALES   BY   SAMPLE.  502 

Unknown  and  undiscoverable  defect.  And  the  state- 
ment has  been  made  that  if  a  manufacturer  agrees  to 
furnish  goods  according  to  sample,  the  sample  is  to  be 
considered  free  from  a  secret  defect  not  discoverable  on 
inspection,  and  unknown  to  both  parties.2 

Goods  rendered  unmerchantable.  Where  shirtings 
sold  by  sample  by  a  manufacturer  were  so  weighted 
b}r  clay  as  to  be  unmerchantable,  it  was  maintained  by 
the  court  that  under  the  peculiar  circumstances  of  the 
case,  the  sale  carried  with  it  an  implied  warranty  of 
merchantable  quality,  besides  that  of  correspondence 
with  the  sample.3 

1  Compare  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438,  3  Eng. 
Rep.  323,  with  Barnard  r.  Kellogg,  10  Wall.  383.     Consult,  further, 
Eickiuson  v.  Guy,  7  Allen,  29 ;  83  Am.  Dec.  656,  638.    And  see  gener- 
ally, Hoe  v.  Sanborn,  21  N.  Y.  552 ;  78  Am.  Dec.  163, 175  ;  White  r.  Mil- 
ler, 71  N.  Y.  118  ;  27  Am.  Rep.  13,  17 ;  S.  C.  78  N.  Y.  303 ;  34  Am.  Rep. 
54-1.    Seller's  knowledge  of  defects:  See  note  to  Bradford  v.  Manly, 
7  Am.  Dec.  127. 

2  See  Bennett's  Benjamin  on  Sales,  §651;  reviewing  Heilbutt  v. 
llbkson,  Law  R.  7  Com.  P.  438  ;  3  Eng.  Rep.  828.    And  consult  gen- 
erally, Randall  v.  Nevvsom,  Law  R.  2  Q.  B.  D.  102 ;  19  Eng.  Rep.  243  ; 
Hoe  v.  Sanborn,  21  N.  Y.  552  ;  78  Am.  Dec.  163, 175. 

3  See  Mody  v.  Gregson,  Law  R.  4  Ex.  47  ;  as  stated,  2  Schouler  on 
Personal  Property,  §  364,  whence  foregoing  paragraph  also  derived. 

g  340.  Buyer's  remedies.  —  Right  of  returning  goods, 
etc.  Among  the  incidents  attaching  to  a  sale  by  sample 
is  this,  that  such  contract  always  contains  an  implied 
term  that  the  goods  may  under  certain  circumstances 
be  returned,1  or  sold  by  the  purchaser,  if  the  purchaser 
will  not  accept  a  return.2 

Mode  of  rejection.  Where  a  party  desires  to  rescind 
a  purchase  upon  the  ground  that  the  quality  of  the 
goods  does  not  correspond  with  the  sample,  it  has  been 
said  to  be  his  duty  to  make  a  distinct  offer  to  return,  or 
in  fact,  to  return  the  goods  by  stating  to  the  vendor 
that  the  goods  are  at  his  risk,  and  that  they  no  longer 
belong  to  the  purchaser,  but  that  the  purchaser  rejects 
them,  and  throws  them,  back  on  the  seller's  hands,  and 


503  SALES  BY   SAMPLE.  g   340 

that  the  contract  is  rescinded.3  But  where  the  sale  is  by 
sample,  and  inspection  is  to  be  at  some  place  after  de- 
livery, it  has  been  considered  that  if  the  goods  are  fou  nd 
on  such  inspection  not  to  be  equal  to  sample,  the  pur- 
chaser has  a  right  to  reject  them  then  and  there,4  for 
which  purpose  no  particular  form  is  essential,  but  it  is 
sufficient  if  he  does  any  unequivocal  act  showing  that 
he  rejects  them  ; 5  and  that  though  he  may  in  fact  return 
them,  or  offer  to  return  them,  yet  the  more  usual  course 
is  to  signify  his  rejection  of  them  by  stating  that  the 
goods  are  not  according  to  the  contract,  and  that  they 
are  at  the  vendor's  risk.6 

Effect  of  acceptance.  In  New  York,  in  a  case  where 
the  contract  was  for  the  sale  of  sumac,  "quality  to  be 
like  sample  in  every  respect,"  and  the  buyer  inspected 
part  of  the  lot  tendered  and  accepted  the  whole,  but 
afterwards  sued  for  damages  for  breach  of  warranty,  it 
was  held  that  under  such  circumstances  the  vendee 
must  immediately  rescind  the  contract,  and  return,  or 
offer  to  return  the  goods,  or  he  will  be  foreclosed  from 
all  claim  ;7  and  that  he  cannot  retain  the  property,  and 
afterwards  sue  for  damages  on  account  of  the  inferior 
quality.8  But  later  cases  in  the  same  State  have  modi- 
fied the  former  rule,  so  that  an  action  or  defense  may 
be  sustained  on  the  warranty  implied  in  a  sale  by 
sample,  or  on  an  express  warranty  in  an  executory 
contract  of  sale,9  though  the  buyer  accepts  and  does  not 
offer  to  return  the  goods.10  And  the  latest  cases  apply 
to  a  sale  by  sample  the  doctrine  that  a  warranty  upon 
an  executory  contract  of  sale  survives  acceptance.11 

1  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438  ;  3  Eng.  Rep.  328.    And 
see  Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250;  3  Eng.  Rep.  187; 
Bennett's  Benjamin  on  Sales,  g  651  ;  citing,  also,  Freeman  v.  Clute.  3 
Barb.  424 ;  Parke  v.  Morris  Axe  Co.  4  Lans.  103. 

2  Messmore  v.  N.  Y.  Shot  Co.  40  N.  Y.  4'J2  ;  as  noted,  Bennett's 
Benjamin  on  Sales,  \  6ol.    If  goods  sold  by  sample  do  not  correspond 
with  the  sample,  the  buyer  may  refuse  to  receive  them,  or  if  received, 
he  may  return  them  in  a  reasonable  time  allowed  for  examination . 


§   340  SALES  BY   SAMPLE.  504 

and  thus  resc-ind  the  contract :  Pope  v.  Allis,  115  IT.  S.  363,  372  ;  citing, 
Loryrner  v.  Smith,  1  Barn.  &  C.  1 ;  Magee  v.  Billingsley,  3  Allen,  679. 

3  Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250 ;  3  Eng.  Rep.  187. 
And  consult  \  263,  on  BUYKH'S  COURSE  ox  REJECTIOX. 

4  See  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  438  ;  3  Eng.  Rep.  428. 

5  Grimoldby  v.  Wells,  Law  R.  10  Com.  P.  3H1 ;  12  Eng.  Rep.  451. 

6  Grimoldby  v.  Wells,  Law  R.  10  Com.  P.  391 ;  12  Eng.  Rep.  451. 
See   Bennett's   Benjamin  on  Sales,  §  652  a  ;   citing,  also,  Lucy  r. 
Mouflet,  5  Hurl.  &  N.  233  ;  Gill  v.  Kaufman,  16  Kan.  571  ;  Brown  v. 
Corp.  of  Lindsay,  35  Up.  Can.  Q.  B.  509. 

7  Dutchess  Co.  v.  Harding,  49  N.  Y.  321.    And  see  Barton  v.  Kane. 
17  Wis.  38  ;  84  Am.  Dec.  728,  731. 

8  Dutchess  Co.  v.  Harding,  49  N.  Y.  321.    Compare  Brantley  ?'. 
Thomas,  22  Tex.  270  ;  73  Am.  Dec.  264,  267.    So  as  to  acceptance  of 
unmerchantable  goods:  See  Reed  v.  Randall,  29  X.  Y.  358,  368;  86 
Am.  Dec.  305  ;  Sprague  v.  Blake,  20  Wend.  61. 

9  See  Day  v.  Pool,  52  N.  Y.  416. 

10  See  Gurney  v.  Atlantic  Ry.  Co.  58  N.  Y.  358  ;  Gautier  v.  Douglass 
etc.  Co.  13  linn,  514  ;  2  C'orbin's  Benjamin  on  Sales,  \  977,  n.  29  ;  stating, 
also,  Marshuetz  v.  McGreevy,  23  Hun.  408. 

11  See  Briggs  v.  Hilton,  99  N.  Y.  517;  52  Am.  Rep.  63;  Kent  v. 
Friedman,  101  N.  Y.  616  ;  3  N.  E.  Rep.  905  ;  \  337,  on  COXCIAJSIVKXKSS 
OF  ACCEPTANCE. 


SALES  BY  DESCRIPTION. 


341 


CHAPTER  XXVI. 

SALES  BY    DESCRIPTION. 

341.  Seller's  liability. 

§  342.  Undertaking  as  condition  or  warranty. 

\  343.  Remedies  as  affecting  construction. 

§  344.  Liability  of  manufacturer. 

\  345.  Words  of  description. 

311.  Seller's  liability,  —  Nature  of  undertaking. 
Without  express  warranty  or  actual  fraud,  every  per- 
son who  sells  goods  of  a  certain  denomination  or  de- 
scription, undertakes  as  part  of  his  contract  that  the 
thing  delivered  corresponds  to  the  description,  and  is 
in  fact  an  article  of  the  species,  kind,  and  quality  thus 
expressed  in  the  contract  of  sale.1  Such  an  undertak- 
ing is  usually  treated  as  a  warranty,  because  the  de- 
scription of  the  article  is  deemed  a  representation  that 
it  answers  the  description.2  But  it  is  sometimes  re- 
garded as  a  condition,3  or  rather  as  an  engagement 
whose  breach  constitutes  a  non-performance  of  the 
contract.4 

Agreement  to  Jill  order.  And  where  a  vendor  agrees 
to  fill  an  order  sent  for  an  article  of  a  particular  quality, 
his  liability  is  the  same  as  when  the  proposition  to  sell 
an  article  of  that  description  comes  from  him  in  the- 
first  instance,  and  he  is  liable  if  the  goods  sent  do  not 
correspond  with  the  description.5 

Doctrine  governing  sales  by  description.  The  doctrine 
that  on  the  sale  of  a  chattel  as  being  of  a  particular  kind 
or  description,  a  contract  is  implied  that  the  article  sold 
is  of  that  kind  or  description,  has  been  sustained6  by 
various  English  cases,7  and  has  been  generally  approved 
by  decisions  in  the  courts  of  this  country.8  But  it  was 
NEWMAKK  SALES.  —  43. 


§   342  SALES  BY   DESCRIPTION.  506 

formerly  held  in  New  York,  that  no  warranty  whatever 
would  arise  from  a  description  of  the  article  sold.9 

1  Winsor  v.  Lombard,  18  Pick.  57,  60 ;  relying  upon  Hastings  v. 
Lovering,  2  Pick.  214  ;  13  Am.  Dec.  420  ;  Hogins  v.  Ply mp ton,  11  Pick. 
97. 

2  Bagley  v.  Cleveland  Rolling  Mill  Co.  21  Fed.  Rep.  159, 162. 

3  See  Pope  v.  Allis,  115  U.  S.  363,  371,  372. 

4  See  Jones  v.  George,  61  Tex.  345  ;  43  Am.  Rep.  280,  281 ;  Bagley 
v.  Cleveland  Rolling  Mill  Co.  21  Fed.  Rep.  159,  162.    And  consult  Wol- 
cott  v.  Mount,  36  N.  J.  L.  26J  ;  13  Am.  Rep.  438,  441.  442. 

5  Bagley  v.  Cleveland  Rolling  Mill  Co.  21  Fed.  Rep.  159, 163  ;  citing, 
Dailey  v.  Green,  13  Pa.  St.  118. 

6  According  to  Wolcott  v.  Mount,  36  N.  J.  L.  262  ;  13  Am.  Rep.  438, 
442 

7  See  Powell  r.  Horton,  2  Bing.  IS".  C.  668  ;  Barr  v.  Gibson,  3  Mees. 
&  \V.  8SX) ;  Chanter  v.  Hopkins,  4  Mt-es.  &  W.  3;i9  ;  tsichol  v.  uodts,  10 
Ex    191 ;  Goinpertz  v.  Bartlett,  2  El.  &  B.  849 ;  Azemar  r.  Casella,  2 
Com.  P.  431,  677 ;  Bridge  v.  Wain,  1  Stark.  504  (scarlet  cuttings)  ;  Allen 
v.  Lake,  18  Q.  B.  560  ("Skirving's  Swedes"  turnip  seeds) ;  Josling  ?«. 
Kingsford,  13  Com.  B.  N.  S.  447  (oxalic  acid) ;  Wieler  v.  Shillizi,  17 
Com.  B.  610  (Calcutta  linseed). 

8  See  Henshaw  v.  Robins,  9  Met.  83;  43  Am.  Dec.  367  ;  Borrekins 
ii.  Bevan,  3  Rawle,  23  ;  23  Am.  Dec.  83  ;  Osgood  v.  Lewis,  2  liar.  &  G. 
415 ;  18  Am.  Dec.  317 ;  Hawkins  v.  Pemberton,  51  N.  Y.  198 ;  10  Am. 
Rep.  595  ;  Pope  v.  Allis,  115  U.  S.  363,  372. 

9  See  Seixas  v.  Woods,  2  Caines,  48  ;  2  Am.  Dec.  215 ;  Snell  v. 
Moses,  1  Johns,  9fi ;  Swett  v.  Colgate,  20  Johns.  196  ;  11  Am.  Dec.  260  ; 
as  cited  in  support  of  text  in  Wolcott  v.  Mount,  32  N.  J.  L.  262  ;  H  Am. 
Rep.  438,  440.    But  see  Hawkins  v.  Pemberton,  51  N.  Y.  198,  204 ;  10 
Am.  Rep.  595. 

§  342.  Undertaking  as  condition  or  warranty.  —  As 
warranty.  There  is  said  to  be  no  doubt  that  in  a  con- 
tract of  sale,  words  of  description  are  held  to  constitute 
a  warranty  that  the  articles  sold  are  of  the  species  and 
quality  so  described.1  But  in  the  later  English  cases, 
and  in  various  American  decisions,  some  criticism  has 
been  made  of  the  application  of  the  term  "warranty  " 
to  representations  in  contracts  of  sale,  descriptive  of 
articles  which  are  known  in  the  market  by  such 
description.2 

As  contract.  And  it  has  been  said  that  in  many  cases 
the  circumstance  of  a  party  selling  a  particular  thing 
by  its  proper  description  has  been  called  a  warranty, 
and  the  breach  of  such  a  contract,  a  breach  of  warranty, 


507  SALES  BY  DESCRIPTION.  g   342 

while  it  would  be  better  to  distinguish  such  cases,  as 
where  a  party  offers  to  buy  an  article  of  one  kind,  and 
the  other  party  sends  him  an  article  of  an  entirely 
different  kind,  as  a  non-compliance  with  the  contract 
which  the  party  has  engaged  to  fulfill.3 

As  condition.  So  it  is  laid  down  that  when  the  subject- 
matter  of  a  sale  is  not  in  existence,  or  not  ascertained 
at  the  time  of  the  contract,  an  undertaking  that  it  shall, 
when  existing  or  ascertained,  possess  certain  qualities, 
is  not  a  mere  warranty,  but  a  condition,  the  performance 
of  which  is  precedent  to  any  obligation  upon  the  vendee 
under  the  contract ;  *  because  the  existence  of  those 
qualities  being  part  of  the  description  of  the  thing  sold, 
becomes  essential  to  its  identity,  and  the  vendee  cannot 
be  obliged  to  receive  and  pay  for  a  thing  different  from 
that  for  which  he  contracted.5  And  a  statement  in  a 
mercantile  contract  descriptive  of  the  subject-matter, 
or  of  some  material  incident,  such  as  the  time  or  place 
of  shipment,  is  said  to  be  ordinarily  regarded  as  a  war- 
ranty in  the  sense  in  which  that  term  is  used  in  insur- 
ance and  maritime  law,  that  is  to  say,  a  condition 
precedent,  upon  the  failure  or  non-performance  of  which 
the  party  aggrieved  may  repudiate  the  whole  contract.6 

Other  views.  But  some  of  the  cases  either  avoid  the 
use  of  the  terms  "warranty"  and  "condition"  in  this 
connection,7  or  else  regard  it  as  immaterial  whether  the 
action  bought  for  variance  from  the  description  shall 
be  technically  considered  an  action  on  a  warranty,  or 
an  action  for  the  non-performance  of  a  contract.8 

1  Ilogins  v.  Plympton,  11  Pick.  97,  99. 

2  See  Wolcott  v.  Mount,  36  N.  J.  L.  262 ;  13  Am.  Rep.  438,  444  ; 
referring  to  Chanter  v.  Hopkins,  4  Mees.  <fe  W.  404  ;  and  to  Banner- 
man  v.  White,  10  Com.  B.  N.  S.  844.    Consult,  also,  Pope  v.  Allis.  115 
U.  S.  363,  371,  372. 

3  See  Jones  v.  George,  61  Tex.  345 ;  48  Am.  Rep.  280,  281 ;  citing, 
Bennett's  Benjamin  on  Sales,  §  HOO,  and  cases  cited  in  notes  ;  Pollock 
on    Contracts,  465  ;   Story  on  Contracts,  107!),  and    cases    cited ;   2 
Sutherland  on  Damages,  411,  and  cases  cited  iu  note  1. 


§   343  SALES   BY  DESCRIPTION..  508 

4  Pope  v.  Allis,  115  U.  S.  363,  371.    And  see  Maxwell  v.  Lee,  27 
N.  W.  Hep.  (Minn.)  196  ;  21  The  Reporter,  727. 

5  Pope  v.  Allis,  115  U.  S.  363,  372  ;  citing  Chanter  v.  Hopkins,  4 
Mees.  &  W.  399,  404  ;  Barr  r.  Gibson,  3  Mees.  &  W.  390 ;  Gompertz  v. 
Bartlett,  2  El.  &  B.  849;  Okell  v.  Smith,  1  Stark.  SI  ;  notes  to  Cutter 
?'.  Powell,  2  Smith's  Lead.  Cas.  (7th  Am.  ed.)  37  ;  Woodle  r.  Whitney, 
23  Wis.  25;   Boothby  v.  Scales,  27  Wis.  626;   Fairfield  r.  Madison 
Manuf.  Co.  38  Wis.  346  ;  and  referring,  also,  to  Nichol  v.  Godts,  10  Ex. 
91. 

6  See  Norrington  v.  Wricrht,  115  U.  S.  188,  203  ;  Filley  v.  Pope,  115 
U.  S.  213,  219  ;  Pope  v.  Allis,  115  U.  S.  363,  372. 

7  See  Bannerman  v.  White,  10  Com.  B.  N.  S.  844. 

8  Wolcott  v.  Mount,  36  N.  J.  L.  262  ;  13  Am.  Rep.  438,  442. 

§  343.  Eomedies  as  affecting  construction.  —  Right  of 
repudiation.  The  right  to  repudiate  the  purchase  for 
non-conformity  of  the  article  delivered  to  the  descrip- 
tion under  which  it  was  sold  is  universally  conceded.1 

Rescission  becoming  impossible.  And  it  is  said  that 
while  the  rights  of  parties  who  buy  under  an  express 
or  implied  warranty  as  to  the  quality  of  the  thing  sold, 
and  of  those  persons  who  contract  for  one  thing  while 
another  is  delivered  to  them,  may  differ  in  some  re- 
spects in  reference  to  remedy,  yet  it  would  seem  that 
the  relief  would  be  the  same  whether  the  action  be  on  a 
warranty  or  for  breach  of  contract,  when  rescission  has 
become  impracticable,  as  when  the  thing  delivered  lias 
been  consumed  in  testing  it.2  Accordingly  it  has  been 
laid  down  that  it  will  comport  with  sound  legal  princi- 
ples to  treat  engagements  of  the  seller,  that  the  article 
delivered  shall  correspond  with  the  description,  as  con- 
ditions, in  order  to  afford  the  seller  a  more  enlarged 
remedy  by  rescission  than  he  would  have  on  a  simple 
warranty,  but  when  his  situation  has  been  changed 
and  the  remedy  by  repudiation  has  become  impossible, 
to  give  him  such  redress  upon  his  contract  as  is  alone 
practicable  under  the  circumstances,  by  means  of  an 
action  for  damages.3 

Representations  changing  from  conditions  to  warran- 
ties. And  it  has  been  held  in  a  number  of  instances 


SALES  BY  DESCRIPTION.  g   344 

that  statements  descriptive  of  the  subject-matter,  if  in- 
tended as  a  substantive  part  of  the  contract,  will  be 
regarded  in  the  first  instance  as  conditions,  on  the  failure 
of  which  the  other  party  may  repudiate  in  toto,  by  a 
failure  to  accept  or  a  return  of  the  article,  if  that  be 
practicable  ; 4  but  that  if  part  of  the  consideration  has 
'been  received,  and  rescission  therefore  has  become  im- 
practicable, such  representations  change  their  character 
as  conditions  and  become  warranties,  for  the  breach  of 
which  an  action  will  lie  to  recover  damages.5 

1  Wolcott  v.  Mount,  36  N.  J.  L.  262  ;  13  Am.  Rep.  438,  442. 

2  Jones  v.  George,  61  Tex.  345  ;  48  Am.  Rep.  280, 282. 

3  \Volcott  v.  Mount,  36  N.  J.  L.  262,  266 ;  13  Am.  Rep.  438,  442 ; 
quoted,  Jones  v.  George,  61  Tex.  345  ;  43  Am.  Rep.  280, 282. 

4  See  Bonn  v.  Burness,  3  Best  &  Smith,  755 ;  Langdell's  Cases  on 
Contracts  (1st  ed.),  560, 589. 

5  Wolcott  v.  Mount,  36  N.  J.  L.  262  ;  13  Am.  Rep.  438, 441 ;  relying 
upon  Behn  r.  Burness,  3  Best  &  Smith,  753 ;  Langdell's  Cases  on  Con- 
tracts (1st  ed.),  580,  58!),  which  refers  to  Ellen  v  Topp,  6  Ex.  424-441 ; 
Langdell's  Cases  on  Contracts  (1st  ed.),  542;  Elliott  v.  Von  Glehn,  10 
Com.  B.  N.  S.  844 ;  Graves  v.  Legg,  9  Ex.  709-716  ;  Langdell's  Cases  on 
Contracts  (1st  ed.),  555,  adopting  the  observations  of  Sargeant  Wil- 
liams on  the  case  of  Boone  v.  Eyre,  1  Black.  II.  273,  n.  a,  in  1  Saund. 
(6th  ed.)  320  d. 

\  344.  Liability  of  manufacturer. —  Warranty  of  mer- 
chantability or  fitness.  The  contract  which  arises  from 
the  description  of  an  article  on  a  sale  by  a  dealer  who  is 
not  the  manufacturer,  is  not  in  all  respects  co-extensive 
with  that  which  is  sometimes  implied  where  the  vendor 
is  the  manufacturer,  and  the  goods  are  ordered  by  a 
particular  description,  or  for  a  specified  purpose,  without 
opportunity  for  inspection.1  In  the  latter  case,  a  war- 
ranty under  some  circumstances  is  implied  that  the 
goods  shall  be  merchantable,  or  reasonably  fit  for  the 
purpose  for  which  they  were  ordered.2 

Ordinary  sales  by  description.  But  in  general,  the 
only  contract  which  arises  on  the  sale  of  an  article  by  a 
description,  is  that  it  is  of  the  kind  specified  ;3  and  if  the 
article  corresponds  with  that  description,  no  warranty 


§    345  SALES  BY  DESCRIPTION.  510 

is  implied  that  it  shall  answer  the  particular  purpose  in 
view  of  which  the  purchase  was  made.4 

1  Wolcott  v.  Mount,  32  N.  J.  L.  262  ;  13  Am.  Rep.  442. 

2  Wolcott  v.  Mount,  32  N.  J.  L.  262  ;  13  Am.  Rep.  442. 

3  See  Winsor  v.  Lombard,  18  Pick.  57  ;  Bagley  v.  Cleveland  Roll* 
ing  Mul  Co.  21  Fed.  Rep.  15J,  162. 

4  Wolcott  v.  Mount,  32  N.  J.  L.  262  ;  13  Am.  Rep.  438,  443 ;  citing' 
Chanter  v.  Hopkins,  4  Mees.  &  W.  411 ;  Ollivant  v.  Bayley,5  Q.  B. 
288  ;  Winsor  v.  Lombard,  18  Pick.  55  ;  Mixer  v.  Coburn,  11  Met.  55',) ;  45 
Am.  Dec.  230;  Gossler  v.  Eagle  etc.  Co.  103  Mass.  3°A  ;  and  referring 
to  a  classification  of  the  cases  on  this  subject,  in  Jones  v.  Just,  Law  R. 
3  li.  B.  107. 

§  345.  Words  of  description. — May  amount  to  a  war- 
ranty. Words  of  description  may  amount  to  a  war- 
ranty if  it  appears  that  they  were  so  intended  by  the 
parties.1 

Oral  and  written  statements.  Nor  can  any  distinction 
be  made  between  statements  of  this  character  in  written 
and  in  oral  contracts,  in  favor  of  the  view  that  where 
the  contract  is  oral,  loose  expressions  of  judgment  or 
opinion  pending  the  negotiation  might  be  regarded  as 
embodied  in  the  contract,  contrary  to  the  intentions  of 
the  parties.2 

Question  of  construction.  But  it  is  always  a  question 
of  construction3  or  of  fact4  whether  such  statements 
were  the  expression  of  a  mere  matter  of  opinion,  or 
were  intended  to  be  a  substantive  part  of  the  contract 
when  concluded.5 

Disinclination  to  construe  as  warranty.  And  it  is  said 
that  courts  are  usually  disinclined,  in  doubtful  cases, 
to  construe  words  of  description  as  amounting  to  a 
warranty.6 

1  Maxwell  v.  Lee, 27  N.  W.  Rep.  (Minn.)  196  ;  21  The  Reporter,  727 ; 
referring  to  Hastings  v.  Lovering,  2  Pick.  215 ;   13  Am.  Dec.  420 ; 
Hogins  v.  Plympton,  11  Pick.  97. 

2  Wolcott  v.  Mount,  32  N.  J.  262  ;  13  Am.  Law  Rep.  438,  443. 

3  See  Behn  v.  Bumess,  3  Best  &  Smith,  751 ;  Langdeli's  Cases  on 
Contracts  (1st  ed.),  580. 

4  See  citations  in  next  note. 


511 


SALES  BY  DESCRIPTION. 


345 


5  Wolcott  v.  Mount,  32  N.  J.  262 ;  13  Am.  Bep.  438, 443.  If  the  con- 
tract be  in  writing,  the  question  is  one  of  construction  for  the  court: 
See  Behn  v.  Harness,  3  Best  &  Smith,  751.  But  if  it  be  concluded  by 
parol,  it  will  be  for  the  determination  of  the  jury,  from  the  nature  of 
the  sale,  and  the  circumstances  of  each  particular  case,  whether  the 
language  used  was  an  expression  of  opinion,  merely  leaving  the 
buyer  to  exercise  his  own  judgment,  or  whether  it  was  intended  and 
understood  to  be  an  undertaking  which  was  a  contract  on  the  part  of 
the  seller :  See  Lomi  v.  Tuclcer,  4  Car.  &  P.  15 ;  L)e  Sewhanberg  v. 
Buchanan,  5  Car.  &  P.  343  ;  Power  v.  Bar  ham,  4  Ad.  <fe  E.  473. 
1  6  Maxwell  v.  Lee,  27  N.  W.  Hep.  (Minn.)  196 :  21  The  Reporter,  727. 
''Connecticut  tobacco"  construed  as  part  of  the  agreement  of  sale, 
whether  strictly  a  warranty  or  not :  Bach  v.  Levy,  5  N.  E.  Rep. 
(N.  Y.)  345.  Word  "choice":  See  Forctieimer  v.  Stewart,  65  Iowa, 
594  ;  54  Am.  Rep.  30,  35. 


§   346  WARRANTY  OF  FITNESS.  512 

CHAPTER  XXVII. 

WARRANTY  OF    FITNESS,   ETC. 

\  346.    Fitness  for  particular  purpose. 

$  347.    Merchantable  character. 

I  348.    Warranty  on  sale  of  provisions. 

\  346.  Fitness  for  particular  purpose. —  General  doc- 
trine. In  England,  it  has  been  laid  down  as  a  general 
principle  that  where  a  man  sells  an  article  for  a  particu- 
lar purpose,  he  thereby  warrants  it  fit  for  that  purpose.1 
And  where  a  manufacturer  or  dealer  contracts  to  sup- 
ply an  article  which  he  manufactures  or  produces,  or 
in  which  he  deals,  to  be  applied  to  a  particular  purpose, 
made  known  to  the  seller  at  the  time  of  the  contract,  so 
that  the  buyer  necessarily  trusts  to  the  judgment  or 
skill  of  the  manufacturer  or  dealer,  and  does  not  pur- 
chase on  his  own  judgment,  the  rule  appears  to  be  that 
in  such  case  there  is  an  implied  term  of  warranty  that 
the  article  shall  be  fit  for  the  purpose  to  which  it  is  to 
be  applied.2  So  in  this  country  there  are  various  state- 
ments of  the  law  tending  to  a  similar  result  among  the 
different  expressions  of  the  scope  of  the  warranty  in 
the  leading  cases  on  this  subject.3 

Illustrative  cases.  And  it  has  been  held  that  a  sale  of 
leather  by  the  manufacturer  thereof  to  a  manufacturer 
of  shoes,  for  the  specific  purpose  of  being  manufactured 
into  shoes,  carries  an  implied  warranty  that  the  leather 
sold  should  be  reasonably  fit  for  the  purpose  for  which 
it  was  bought,  and  thus  should  be  sound  and  suited  for 
shoes.4  So  it  has  been  held  that  there  is  a  warranty  of 
quality  created  by  the  contract  of  sale,  where  a  dealer 
offered  to  purchase  a  quantity  of  iron  for  use  by  a  cor- 
poration, which  was  to  buy  it  of  the  dealer,  and  re- 


513  WARRANTY   OF   FITNESS.  $    346 

quired  it  to  be  of  a  certain  quality  known  as  "  strictly 
neutral,"  and  the  sellers,  who  were  also  manufacturers, 
knew  of  the  buyer's  purpose  and  the  customer's  re- 
quirements, and  accepted,  promising  "  quality  of  iron 
to  be  strictly  neutral."5 

,  Knowledge  of  buyers  intention,  etc.  But  the  distinc- 
tion is  stated  to  be  well  settled  that  when  a  known, 
described,  and  denned  thing  is  ordered,  even  of  a 
manufacturer,  and  although  it  is  stated  to  be  required 
by  the  purchaser  for  a  particular  purpose,  yet  if  the 
known,  denned,  and  described  thing  be  actually  sup- 
plied, the  purchaser  takes  upon  himself  the  risk  of  its 
effecting  its  purpose,  and  there  is  no  implied  warranty 
that  it  shall  answer  the  particular  purpose  intended  by 
the  buyer.6  And  it  has  been  held  that  110  warranty  is 
implied  merely  from  the  fact  that  when  the  prospect- 
ive buyer  contracted  for  the  purchase  of  specific  prop- 
erty,  then  existing  in  the  form  of  logs,  the  expectant 
seller  knew  that  such  buyer  intended  to  use  the  prop- 
erty for  the  manufacture  of  lumber.7 

Manufactured  article.  In  California,  it  is  only  where 
an  article  is  manufactured  under  an  order  for  a  particu- 
lar purpose,  that  the  manufacturer,  by  the  sale,  war- 
rants that  it  is  reasonably  fit  for  that  purpose;8  and 
fire-wood  has  been  held  not  a  manufactured  article,  the 
buyer  of  which  can  recover  under  such  an  implied 
warranty,  for  the  loss  incurred  by  his  efforts  to  use  it 
for  the  purpose  of  burning  bricks  in  a  kiln.9 

1  Randall  v.  Newson,  Law  B.  2  Q.  B.  D.  102  ;  19  Eng.  Bep.  243. 

2  See  Jones  v.  Just,  Law  B.  3  Q.  B.  197;  Brown  v.  Edgington,  2 
Man.  <fe  G.  279 ;  Jones  v.  Bright,  5  Bing.  5*3  ;  Chanter  v.  Hopkins,  4 
Mees.  &  W.  399  ;  Ollivant  v.  Bayley,  5  Q.  B.  288. 

3  Consult,  generally,  Beals  v.  Olmstead,  24  Vt.  114  ;  58  Am.  Dec. 
150 ;  Bragg  v,  Morrill,  49  Vt.  45 ;  24  Am.  Bep.  102,  n.  104  ;  Best  v.  Flint. 
58  Vt.  543 ;  56  Am.  Bop.  570,  572  ;  Lukens  v.  Freiund,  27  Kan.  604  ;  41 
Am.  Bep.  429,  431:  Herring  v.  Hoppock,  34  N.  Y.  118;  88  Am.  Dec. 
428,  431;  Getty  v.  Bountree,  2  Finn.  479;  2  Chand.  28;  54  Am.  Dec. 
]38, 141 ;  Fisk  v.  Tank,  12  Wis.  276  ;  78  Am.  Dec.  7:57,  744 ;  Port  Carbon 
Iron  Co.  v.  Groves,  68  Pa.  St.  149 ;  22  Am.  Law  Beg.  N.  S.  225  ;  note  to 


§   347  WARRANTY  OF  FITNESS.  514 

Hoult  v.  Baldwin,  8  Pac.  Hep.  443 ;  note  to  Revnolds  v.  Palmer,  21 
Fed.  Rep.  443. 

4  Dearborn  v.  Downing,  117  Me.  457  ;  referring  to  French  v.  Vin- 
ing,  102  Mass.  132  ;  Hight  v.  Bacon,  126  Mass.  11 ;  Pease  v.  Sabine,  38 
Vt.  432  ;  Jones  v.  Just,  Law  R.  3  Q.  B.  197  ;  Jones  v.  Bright,  5  Bing.  533. 

5  Phila.  etc.  Coal  etc.  Co.  Hoffman,  4  Atl.  Rep.  (Pa.)  848. 

6  Warren  Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547 ;  5  Atl. 
Rep.  253  ;  relying  upon  Rasin  v.  Conley,  58  Md.  65  ;  and  referring  to 
sanction  of  rule  of  caveat  emptor  in  Hyatt  v.  Boyle,  5  Gill.  &  J.  1-0  ; 
Gunther  v.  Atwell,  1'j  Md.  171  ;  Rice  v.  Forsyth,  41  Md.  404.    And  see 
Jones  v.  Just,  Law  R.  3  Q.  B.  107  ;  citing,  Chanter  r.  Hopkins,  4  Mees. 
&  W.  399;  Ollivnntr.  Bayley,  5  Q.  B.  288.    Consult  note  to  Reynolds 
7>.  Palmer,  21  Fed.  Rep.  44fi.    Compare  Dounce  ?>.  Dow,  64  N.  Y.  411  ; 
Rolgers  v.  Niles,  11  Ohio  St.  4S  ;  Gerst  ?'.  Jones,  32  Gratt.  521 ;  Demirg 
v.  Foster,  42  N.  H.  165  ;  Lukens  v.  Freiund,  27  Kan.  664  ;  41  Am.  Rep. 
429,  430,  431. 

7  Thompson  v.   Libby,  29  N.  W.  Rep.  (Minn.)  150*   referring  to 
Cosgrove  v.  Bennett,  32  Minn.  371 ;  20  N.  W.  Rep.  359,  Whitrnore  ?'. 
South  Boston  Iron  Co.  2  Allen,  52,  5S  ;  Hight  r.  Bacon,  I2f>  Mass.  10  ; 
Port  Carbon  Iron  Co.  ?'.  Groves,  68  Pa.  St.  149;  Mason  v.  Chappell,  15 
Gratt.  572,  584  ;  Rasin  r.  Conloy,  58  Md.  59  ;  Gachet  r.  Warren,  72  Ala. 
288  ;  Jones  v.  Just,  Law  R.  3  Q.  B.  197,  202. 

8  See  Carreio  v.  Lynch,  65  Cal.  273  ;  Hoult  v.  Baldwin,  8  Pac.  Rep. 
440,  442. 

9  Carreio  v.  Lynch,  65  Cal.  273. 

\  347,  Merchantable  character.  —  Connection  with  other 
warranties.  The  implied  warranty  of  merchantable 
character1  is  generally  connected  with  that  011  sales  by 
description,  or  of  fitness  for  special  purpose.2  Thus  it 
is  said  that  under  a  contract  to  supply  goods  of  a  speci- 
fied description,  which  the  buyer  has  had  no  oppor- 
tunity of  inspecting,  the  goods  must  not  only  in  fact 
correspond  to  the  specific  description,  but  must  be  salable 
or  merchantable  under  that  description.3  So  it  is  laid 
down  that  a  contract  to  manufacture  and  deliver  an 
article  at  a  future  day,  carries  with  it  an  obligation  that 
the  article  shall  be  merchantable,4  or  if  sold  for  a  par- 
ticular purpose,  that  it  shall  be  suitable  and  proper  for 
such  purpose.5 

Limitations  of  scope.  But  it  has  been  held  that  in  the 
case  of  logs  so  situated  that  they  could  not  be  inspected 
by  the  vendee  at  the  time  of  an  executory  contract  for 
their  sale,  any  undertaking  which  may  be  implied  on 


WARRANTY  OF  FITNESS.  §   348 

the  part  of  the  vendor  as  to  their  merchantable  quality, 
is  to  be  treated  as  a  condition  rather  than  as  a  warranty 
as  to  obvious  defects,  discoverable  on  delivery.6  And 
some  of  the  decisions  refer  to  a  warranty  of  merchant- 
able quality  as  concerning  executory  contracts  only,7  or 
attempt  to  distinguish  such  a  warranty  as  indicating 
'that  the  article  shall  be  marketable  any  where  as  a  sound 
article  of  merchandise,  from  a  mere  warranty  that  it 
was  merchantable  and  fit  for  the  use  for  which  it  was 
bought.8 

1  See  generally,  Reed  v.  Randall,  29  N.  Y.  .358  ;  86  Am.  Dec.  305, 
307,  n.  312  ;  Kohl  v.  Lindley,  39  III.  195 ;  89  Am.  Dec.  294,  300,  301  ; 
Rymnn  v.  Ulmer,  108  Pa.  St.  332;  56  Am.  Rep.  210,211;  Rodgers  v. 
Kiles,  11  Ohio  St.  48. 

2  See  succeeding  portions  of  section.    And  consult  note  to  Rey- 
nolds «.».  Palmer,  21  Fed.  Rep.  441. 

3  Warren  Glass  Works  Co.  v.  Keystone  Coal  Co.  65  Md.  547  ;  5  Atl. 
Rop.  253.    And  see  Gardiner  v.  Gray,  4  Camp.  144  ;  Bennett's  Benja- 
min on  Sales,  \  Gofl,  and  cases  cited  and  reviewed. 

4  "  Where  a  manufacturer  undertakes  to  supply  goods  manu- 
factured by  himself,  or  in  which  he  deals,  but  which  the  vendee  luis 
not  had  the  opportunity  of  inspecting,  it  is  an  implied  term  in  the 
contract  that  he  shall  supply  a  nierchantable  article :  "  Jones  v.  Just, 
Law  R.  3  Q.  B.  I'M  ;  citing,  Laing  v.  Fidgem,4  Camp.  1fi9  ;  6  Taunt. 
108.    Impracticability  of  examination,  etc.:  Rodgers  v.  Niles.  11  Ohio 
St.  48. 

5  Gay  lord  Manuf.  Co.  v.  Allen,  53  N.  Y.  515,  518  ;  Bennett's  Benja- 
min on  Sales,  §  C>."7,  n.  I ;  citing,  also,  Beals  v.  Olmstead,  24  Vt.  114  ;  58 
Am.  Dec.  150 ;  Brown  v.  Sayles,  27  Vt.  227 ;  Walton  v.  Cody,  1  Wis. 
420  ;  Leopold  v.  Van  Kirk,  27  Wis.  152.    See,  also,  Jones  ?•.  Bright,  5 
Bing.  544  ;  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  441 ;  Randall  v 
Newson,  Law  R.  2  Q.  B.  102  ;  19  Eng.  Rep.  243. 

6  Thompson  v.  Libby,  29  N.  W.  Rep.  (Minn.)  150. 

7  See  Reed  v.  Randall,  29  N.  Y.  358 ;  86  Am.  Dec.  305,  307,  n.  312. 

8  Kohl  v.  Lindley,  39  111.  195  ;  89  Am.  Dec.  294,  301.    Continuance 
of  warranty :  See  Bull  v.  Robinson,  10  Ex.  341  ;  Leggatt  r.  S:imls  Ale 
etc.  Co.  60  111.  158  ;  Mann  v.  Everston,  32  Ind.  3"5  ;  does  not  extend  to 
receptacle  :  Gower  v.  Van  Dedalzen,  3  Bing.  N.  C.  717 ;  2  Schouler  on 
Personal  Property,  \  355. 

$  348,  Warranty  on  sale  of  provisions.  —  English  view. 
In  England,  apart  from  special  statutory  enactments 
concerning  dealers  in  victuals,  and  notwithstanding 
declarations  of  a  contrary  tendency,  there  does  not  seem 
to  be  any  implied  warranty  on  sales  of  food,  that  it  shall 
be  sound  or  wholesome  or  fit  for  food.1 


§  348  WARRANTY  OF  FITNESS.  516 

American  view.  But  in  the  United  States,2  it  seems  to 
be  generally  considered  that  there  is  an  implied  war- 
ranty that  provisions  directly  sold  for  immediate 
domestic  consumption  are  sound  and  wholesome  ;3  but 
that  there  is  no  such  warranty,  if  any  exists  at  all,  upon 
a  sale  of  provisions  to  dealers  as  merchandise.* 

1  See  Burnby  v.  Bollett,  16  Mees.  &  W.  044  ;  2  Corbin's  Benjamin 
on  Sales,  p.  875  ;  Wharton  on  Contracts,  p.  329  ;  Bicidle  on  Chattel 
Warranties,  \\  187-191 ;  2  Schouler  on  Personal  Property,  \  348;  note 
to  Reynolds  v.  Palmer,  21  Fed.  Rep.  449.    And  consult  Moses  ?\  Mead, 
1  Demo,  378 ;  43  Am.  Dec.  676  ;  Emmerton  v.  Matthews,  7  Hurl.  <fc  N. 
5S6  ;  Smith  v.  Baker,  40  L.  T.  N.  S.  261.    Compare  Bigge  v.  Parkinson, 
7  Hurl.  &  N.  9-55  ;  Beer  v.  Walker,  25  Week.  R.  885  ;  note  to  Hunter 
v.  State,  73  Am.  Dec.  167, 168. 

2  See  Lukens  v.  Freiund,  27  Kan.  664  ;  41  Am.  Dec.  429,  432  ,  note 
to  Hunter  v.  State,  73  Am.  Dec.  165,  167,  discussing  this  subject  at 
length ;  note  to  Reynolds  v.  Palmer,  21  Fed.  Rep.  450. 

3  See  Hoover  v.  Peters,  18  Mich.  51 ;  McNaughton  v.  Joy,  1  Week. 
Notes  Cas.  470 ;  Morehouse  v.  Comstock,  42  Wis.  6:!6  ;  Story  on  Sales, 
§  373;  note  to  Hunter  v.  State,  73  Am.  Dec.  167;  note  to  Reynolds  v. 
Palmer,  21  Fed.  Rep.  453.    And  consult  Van  Bracklin  r.  Fonda,  12 
Johns.  268 ;  7  Am.  Dec.  339  ;  Howard  v.  Emerson,  110  Mass.  320 ;  14 
Am.  Rep.  COS  ;  Moses  v.  Mead,  1  Denio,  378  ;  43  Am.  Dec.  676 ;  Ryder 
v.  Neitge,  21  Minn.  70  ;  Hyland  r.  Sherman,  2  Smith,  E.  D.  234  ;  Burch 
v.  Spencer,  15  Hun,  504.    But  compare  Biddle  on  Chattel  Warranties, 
£  204  ;  2  Schouler  on  Personal  Property,  \  348  ;  Lukens  v.  Freiund,  27 
Kan.  664  ;  41  Am.  Rep.  429,  432  ;  Humphreys  v.  Comline,  8  Blackf.  516. 

4  See  Winsor  v.  Lombard,  18  Pick.  61 ;  Humphreys  v.  Comline,  8 
Blackf.  516;  Howard  v.  Emerson,  110  Mass.  320;  14  Am.  Rep.  608; 
Lukens  v.  Freiund,  27  Kan.  664;  41  Am.  Rep.  429,  432.    And  consult 
generally,  Emerson  v.  Brigham,  10  Mass.  197  ;  6  Am.  Dec.  109;  Moses 
v.  Mead,  1  Denio,  387;  43  Am.  Dec.  676. 


517  LATENT  DEFECTS.  \   349 


CHAPTER  XXVIII. 

LATENT  DEFECTS. 

2  349.    Lateut  defects  in  general. 

\  350.    Seller's  knowledge  or  fault  lacking. 

g  349 .  Latent  defects  in  general .  —  Sample  sale  by  dealer. 
It  has  been  laid  down  that  the  law  applicable  to  latent 
defects  in  goods  on  sales  by  sample,  in  a  case  where  the 
seller  was  not  a  manufacturer,  which  cannot  be  varied 
by  a  usage  treating  such  goods  as  damaged  goods,  is 
that  if  there  is  a  defect  in  the  bulk,  and  in  the  sample 
itself  as  a  part  thereof,  and  this  defect  is  unknown  and 
cannot  be  discovered  by  examination,  there  is  no 
implied  warranty  against  this  defect  rendering  the 
seller  responsible  therefor.1 

Manufacturer's  sale.  But  the  rule  where  one  sells 
an  article  of  his  own  manufacture  is  said  to  be,  that  the 
vendor  in  such  a  case  is  liable  for  any  latent  defect,  not 
disclosed  to  the  purchaser,  arising  from  the  manner  in 
which  the  article  was  manufactured,  and  also  if  he 
knowingly  uses  improper  materials  ; 2  but  that  he  is  not 
liable  for  any  latent  defect  in  the  material  which  he  is 
not  shown,  and  cannot  be  presumed  to  have  known.3 

Grower's  liability.  And  the  same  rule,  based  on  the 
presumed  superior  knowledge  of  the  vendor,  has  been 
considered  applicable  so  as  to  imply  a  warranty,  oil  a 
sale  of  seeds  by  the  grower,  that  they  are  not  defective 
from  improper  cultivation.4 

Executory  and  executed  contracts.  But  upon  the 
ground  of  a  distinction  between  an  executory  contract 
and  an  executed  sale  of  specific  goods,  that  part  of  the 
rule  which  exempts  the  seller  from  liability  for  latent 
defects  in  the  material  which  he  is  not  shown,  and  can- 
NEWMARK  SAI.KS.  —  44. 


§   349  LATENT  DEFECTS.  518 

not  be  presumed  to  have  known,5  has  been  deemed  in- 
applicable where  parties  contracted  to  manufacture  for 
future  delivery,  three  steam-boilers  to  run  engines  in  a 
rolling-mill,  and  for  which  a  specified  price  was  agreed 
to  be  paid  ;6  and  it  was  laid  down  that  under  such  cir- 
cumstances the  contracting  parties  must  be  regarded  as 
having  agreed  to  procure  such  materials,  and  apply 
such  workmanship  as  would  furnish  to  the  others 
steam-boilers  free  from  all  such  defects,  latent  or  other- 
wise, as  would  render  them  unfit  for  the  ordinary  uses 
contemplated  by  the  contract.7 

Warranty  of  reasonable  fitness.  In  England,  the 
doctrine  seems  to  be  maintained  that  there  is  no  excep- 
tion as  to  latent  undiscoverable  defects,  to  the  rule  that 
on  a  sale  of  an  article  purchased  for  a  specific  purpose, 
there  is  a  warranty  by  the  vendor  that  it  is  reasonably 
fit  for  that  purpose.8 

Existing  specific  article.  Where  an  existing,  specific, 
definite  thing  is  sold,  without  fraudulent  conduct  or  an 
express  warranty  of  quality,  the  rule  of  caveat  emptor 
governs  as  to  latent  defects.9 

Statutory  regulation.  In  California,  it  is  enacted  that 
one  who  sells,  or  agrees  to  sell,  an  article  of  his  own 
manufacture,  thereby  warrants,  if  free  from  any  latent 
defect,  not  disclosed  to  the  buyer,  arising  from  the 
process  of  manufacture,  and  also  that  neither  he  nor 
his  agent  in  such  manufacture  has  knowingly  used 
improper  materials  therein.10 

1  Dickinson  v.  Gay,  7  Allen,  29 ;  83  Am.  Dec.  656,  658.    Compare 
Heilbutt  I-.  Hickson,  Law  R.  7  Com.  P.  4b8 ;  3  Eng.  Rep.  328 ;  Barnard 
v.  Kellogg,  10  Wall.  383. 

2  Hoe  v.  Sanborn,  21  N.  Y.  552 ;  78  Am.  Dec.  163, 175.    And  consult 
Randall  ?;.  Newson,  Law  R.  2  Q.  B.  D.  102  ;  19  Eng.  Rep.  243.    But 
compare  Cunningham  v.  Hall,  4  Allen,  268,  274. 

3  Hoe  v.  Sanborn,  21  N.  Y.  552  ;  78  Am.  Dec.  163, 175.    And  consult 
Bragg  v.  Morrill,  49  Vt.  45 ;  24  Am.  Rep.  102,  lo;J,  104.    But  see  Rodgers 
r.  !Xiles,  11  Ohio  St.  48,  5(i,  57.     Implication  of  ordinary  quality  of 
article  manufactured  to  order :  Brown  v.  Sayles,  27  Vt.  227,  230,  231. 


519  LATEXT  DEFECTS.  f   350 

4  White  v.  Miller,  71  N.  Y.  118 ;  27  Am.  Eep.  13, 17 ;  S.  C.  78  X.  Y. 
3!T>  ;  ."4  Am.  Rep.  544. 

5  See  Hoe  v.  Sanborn,  21  N.  Y.  552 ;  78  Am.  Dec.  163, 175. 

6  Rodgers  v.  Niles,  11  Ohio  St.  43,  57. 

7  Rodgers  v.  Niles.  1 1  Ohio  St.  48,  56. 

8  Randall  v.  Newson,  Law  R.  2  Q.  B.  D.  102;  19  Eng.  Rep.  243; 
distinguishing,  Redhead  v.  Midland  By.  Co.  Law  R.  4  Q.  B.  24a. 

9  See  Parkinson  v.  Lee,  2  East,  314  ;  Kingsbury  v.  Taylor,  29  Me. 
,  50S  ;  50  Am.  Dec.  607  5  Hartley  v.  Clinton  etc.  Co.  13  Ohio  St.  502 ;  82 

Am.  Dec.  454 ;  Frazier  v.  Harvey,  34  Conn.  469  ;  Lord  v.  Grow,  39  Pa. 
St.  88  ;  80  Am.  Dec.  504 ;  Hoe  v.  Sanborn,  21  N.  Y.  552 ;  78  Am.  Dec. 
163  ;  2  Schouler  on  Personal  Property,  \  365,  so  citing  these  cases. 

10  See  Hoult  v.  Baldwin,  8  Pac.  Rep.  (Cal.)  440, 442 ;  Cal.  Civ.  Code, 
g  1769. 

\  350.  Seller's  knowledge  or  fault  lacking. —  Question 
in  England.  In  England,  the  question  has  been  raised 
whether  the  law  lays  upon  the  seller  or  manufacturer, 
an  obligation  to  warrant  in  all  cases  that  the  article 
which  he  sells  shall  be  reasonably  fit  and  proper  for  the 
purpose  for  which  it  is  intended,1  and  renders  him  re- 
sponsible for  all  the  consequences  which  may  result  if 
it  shall  be  found  not  to  answer  the  purpose  for  which  it 
was  designed,  in  consequence  of  some  latent  defect  of 
•which  he  was  ignorant,  and  which  is  not  proved  to  have 
arisen  from  any  want  of  skill  on  his  part,  or  the  use  of 
improper  materials,  or  any  accident  against  which 
human  prudence  might  have  been  capable  of  guarding 
him.2 

Breaking  of  carriage  pole.  And  where  a  carriage 
builder  supplied  a  pole  for  a  carriage  which  broke  when 
the  buyer  was  driving,  so  that  his  horses  were  injured,  it 
was  held  that  the  carriage  builder  must  be  taken  to  luivo 
warranted  the  pole  to  be  reasonably  lit  for  the  particular 
purpose,  and  that  it  was  immaterial  that  the  fracture 
was  caused  by  a  latent  defect  in  the  wood  which  he 
could  not  have  discovered  by  the  exercise  of  any  reason- 
able care  or  skill.3 

American  view.  But  in  this  country  the  result  of 
the  cases  on  implied  warranty  has  been  considered 


§   350  LATENT  DEFECTS.  520 

to  be,  that  the  vendor  of  an  article  for  a  particular  pur- 
pose does  not  impliedly  warrant  it  against  latent  defects 
unknown  to  him,  and  which  have  been  produced 
through  the  unskillfulness  of  some  previous  manu- 
facturer or  owner  without  his  knowledge  or  fault,4  ex- 
cept in  those  cases  where  the  sale  of  the  article  by  him. 
is  in  and  of  itself  legally  equivalent  to  a  positive  affirma- 
tion that  the  article  has  certain  inherent  qualities  incon- 
sistent with  the  claimed  defects.5 

1  Warranty  of  fitness :  See  g  346. 

2  See  argument  in  Kandall  v.  Newson,  Law  R.  2  Q.  B.  D.  102  ;  19 
Eng.  Rep.  243  ;  referring  to  dictum  in  Gray  v.  Cox,  4  Barn.  &  C.  115. 

3  Randall  v.  Newson,  Law  R.  2  Q.  B.  D.  102, 109  ;  19  Eng.  Rep.  243 ; 
relying  upon  Gray  v.  Cox,  4  Barn.  &  C.  108,  115,  and  Jones  v.  Bright, 
5  Bing.  533,  540  ;  distinguishing,  Redhead  v.  Midland  Ry.  Co.  Law  R.  2 
Q.  B.  412  ;  Law  R.  4  Q.  B.  379. 

4  Compare  Rodgers  v.  Niles,  11  Ohio  St.  48,  56. 

5  Bragg  r.  Morrill,  49  Vt.  45 ;  24  Am.  Rep.  102.    Basis  of  foregoing 
matter:  Bennett's  Benjamin  on  Sales,  §657,  n.  k,  and  §  6fil  «.    On 
defects  not  discoverable  by  inspection  :  Consult,  also,  2  Corbin's  Ben- 
jamin on  Sales,  §  9-'*6,  n.  33  ;  Story  on  Sales,  \\  374,  375.    'VVarranty  of 
fitness  and  latent  defects :  See  note  to  Hoult  v.  Baldwin,  8  Pacif. 
Rep.  443. 


521  REMEDIES  FOB  BREACH  OF  WARRANTY,        \   351 

CHAPTER  XXIX. 

REMEDIES  FOR  BREACH  OF  WARRANTY. 

?  351.    In  general. 

\  352.    Return  of  goods. 

§  353.    Damages. 

|  351.  In  general. —  Where  'warranty  of  quality.  It 
has  been  declared  to  be  a  general  proposition  that  on  a 
sale  of  a  chattel  with  a  warranty,  the  purchaser,  in  case 
the  chattel  turns  out  not  to  be  of  the  kind  or  quality 
represented,  may  have  one  of  two  remedies.1  One 
remedy  is  that  he  may  rescind  the  contract  and  return 
the  property,  restoring  whatever  has  been  paid  or  de- 
livered by  either  party,  and  thereby  placing  the  parties 
in  the  same  position  they  occupied  before  the  purchase.2 
The  other  remedy  is  that  the  purchaser  may  affirm  the 
contract,  retain  the  property,  and  recover  damages 
from  the  vendor  for  a  breach.3  But  this  statement  of 
the  law  in  regard  to  the  absolute  right  of  rescission, 
conforms  only  to  the  view  in  some  of  the  States,4  while 
in  others,  such  right  is  subject  to  various  limitations ; 
and  in  England  as  well  as  in  various  parts  of  this 
country,  the  right  to  return  the  goods  does  not  appear 
to  exist  at  all,  in  the  absence  of  fraud  or  special  stipu- 
lation, in  the  case  of  a  specific  chattel,  where  the  prop- 
erty has  passed  to  the  buyer.5  On  the  other  hand,  the 
buyer  may  not  only  accept  the  goods  and  bring  a  cross- 
action  for  the  breach  of  the  warranty,  but  he  may  now 
in  England,  as  well  as  in  many  parts  of  this  country, 
plead  as  a  set-off,  or  set  up  by  way  of  counter-claim, 
damages  for  breach  of  warranty  in  the  action  brought 
by  the  vendor  for  the  price.6 

Where  warranty  of  title.    If  the  breach  be  of  warranty 


§   351       BEMEDIES  FOR  BREACH  OF  WARRANTY.  522 

of  title,7  the  buyer  may  either  bring  his  action  for  the 
return  of  the  price,  on  the  ground  of  failure  of  the  con- 
sideration for  which  the  price  was  paid,8  or  he  may  sue 
in  damages  for  breach  of  the  vendor's  promise,  as  in  all 
other  cases  of  breach  of  contract.9 

Evidence.  Where  the  failure  of  an  engine,  bought 
to  run  a  threshing-machine  to  fulfill  the  terms  of  the 
warranty,  is  relied  upon  as  a  defense  to  a  suit  upon  the 
price  note,  evidence  of  how  the  owner  of  an  engine  and 
machine  of  the  same  make  and  pattern  would  thresh  in 
a  day  with  his  engine  and  thresher  is  not  improper.10 

1  Weybrich  v.  Harris,  31  Kan.  92 ;  referring  to  McCormick  v. 
Roberts,  32  Kan.  68.    Waiver  of  remedies  for  breach  :  2  Schouler  on 
Personal  Property,  \  588 ;  Adder  v.  Robert  Partner  Brewing  Co.  2 
Atl.  Rep.  (Pa.)  918. 

2  Weybrich  v.  Harris,  31  Kan.  92. 

3  Weybrich  v.  Harris,  31  Kan.  92.    It  Is  said,  however,  that  these 
two  are  the  only  remedies  that  the  purchaser  has  under  the  circum- 
stances, and  that  he  may  not  set  aside  an  express  contract  and  have 
the  courts  create  a  new  and  implied  one,  but  must  cither  rest  on  the 
contract  as  made,  or  rescind  and  repudiate  it :  Weybrich  v.  Harris, 
31  Kan.  92. 

4  Avoidance  of  contract  in  various  States :  See  2  Corbin's  Benja- 
min  on  Sales,  §  13-43,  n.  17  ;  citing,  Wright  r.  Davenport,  44  Tex.  164  ; 
Churchill  v.  Price,  44  Wis.  540,  541 ;  Kimball  etc.  Co.  v.  Vrooman,  35 
Mich.  310,  326;  Mendell  v.  Buttles,  21  Minn.  391,  31)7  ;  Clarke  v.  Mc- 
Gatchie,  49  Iowa,  437  ;  Jack  v.  Des  Moines  etc.  R.  R.  53  Iowa,  399,  402  ; 
Dike  v.  Reitlinger,  23  Hun,  241,  243 ;  Lyon  v.  Bertram,  20  How.  149, 

5  See  2  Schouler  on  Personal  Property,  ?  579  ;  citing,  Street  v.  Blay, 
2  Barn.  &  Adol.  456  ;  Dawson  v.  Collis,  10  Com.  B.  530  ;  Mondell  v. 
Steel,  8  Mees.  &  \V.  858 ;  Heyworth  v.  Hutchinson,  Law  R.  2  Q.  B.  447. 
Compare  Heilbutt  v.  Hickson,  Law  R.  7  Com.  P.  43S  ;  3  Eng.  Rep.  328  ; 
Couston  v.  Chapman,  Law  R.  2  H.  L.  S.  250  ;  3  Eng.  Rep.  187  ;  Grim- 
oldby  v.  Wells,  Law  R.  10  Com.  P.  391 ;  12  Eng.  Rep.  451.    And  consult 
next  section  on  RETURN  OF  GOODS. 

6  See  Bennett's  Benjamin  on  Sales,  \  894 ;  citing,  Coventry  ?;. 
M'Eniry,  13  Ir.  Com.  Law  Rep.  160;  Smith  v.  Dunham,  2  Kerr,  630  ; 
Morrill  r.  Nightingale,  39  Wis.  247.    And  consult  Biddle  on  Chattel 
Warranties,  g  303  ;  2  Schouler  on  Personal  Property,  U  582-584  ;  Getty 
v.  Rountree.  2  Pinn.  379  ;  2  Chand.  28  ;  54  Am.  Dec.  138, 143.    Compare 
Carey  v.  Guillone,  105  Mass.  18 ;  Odom  v.  Harrison,  1  Jones  (X.  C.) 
402  ;  Gillespie  v.  Torrance,  25  N.  Y.  306  ;  82  Am.  Dec.  355. 

7  Breach  by  dispossession,  etc. :  §  329. 

8  As  in  Eichholz  v.  Bannister,  17  Com.  B.  N.  S.  708  ;  34  Law  J. 
Com.  P.  108. 

9  Bennett's  Benjamin  on  Sales,  §  893.    And  see  Biddle  on  Chattel 
Warranties,  g  293  ;  2  Schouler  on  Personal  Property,  §  589. 


523  BEMEDIES  FOR  BREACH   OF  WARRANTY.       §   352 

10  Nat.  Bank  &  Loan  Co.  v.  Dunn,  6  N.  E.  Rep.  (Ind.)  131 ;  refer- 
ring to  rule  concerning  comparison  of  machinery  in  McCormick  H. 
M.  Co.  v.  Gray,  100  Ind.  285.  Error  to  reject  evidence  of  trifling  cost 
and  trouble  of  putting  new  tension  in  defective  machine:  Wheeler 
&  Wilson  Manuf.  Co.  v.  Thompson,  33  Kan.  491.  Evidence  of  alter- 
ation of  written  warranty  when  inadmissible:  Bowker  v.  De  Long, 
4  N.  E.  Rep.  834.  Incompetency,  as  too  remote,  of  low  price  paid  for 
molasses  claimed  to  have  been  sold  with  warranty:  Ockerhauser  v. 
Durant,  5  N.  E.  Hep.  (Mass.)  523.  Irrelevant  questions  as  to  purchase 
and  rejection  of  other  horses  in  action  on  a  warranty  of  a  horse : 
Russell  v.  Cruttenden,  53  Conn.  564.  Wrong  general  design  of 
machine,  and  failure  of  other  like  machines :  Lyon  v.  Martin,  31 
Kan.  411.  Evidence  against  warranty  of  purity,  etc. :  Sliatto  ?'. 
Abernethy,  29  N.  W.  Rep.  (Minn.)  325.  Fitness,  parol  proof  concern- 
ing :  Warren  Glass  Works  Co.  v  Keystone  Coal  Co.  65  Md.  547. 

§  352.  Return  of  goods.  —  Not  necessary  to  obtaining 
damages.  The  law  is  well  settled  that  where  there  is 
an  express  or  implied  warranty  in  the  sale  of  goods,  it 
is  not  necessary  that  the  vendee  should  return,  or  offer 
to  return  them,  to  enable  him  to  recover  or  recoup  the 
damages  which  he  has  sustained  by  a  breach  of  the 
warranty.1 

Conflict  concerning  permissibility  of.  But  there  is  a 
conflict  of  authority  in  this  country  upon  the  question 
whether  the  buyer  may  return  the  goods,  thus  treating 
the  contract  as  rescinded,  and  yet  recover  or  recoup  his 
damages  for  the  breach  of  warranty,  thus  treating  the 
contract  as  subsisting.2 

View  against  right  to  return.  Thus,  it  seems  to  be  re- 
garded as  settled  in  New  York,  at  least  as  to  executed 
contracts  of  sale,  and  in  the  case  of  specific  ascertained 
goods,  that  the  buyer  has  no  right  to  return  goods  sold 
with  warranty  of  quality,  unless  there  was  fraud  in  the 
sale,  or  an  express  contract  conferring  such  right;3 
and  similar  views  receive  support  in  other  States.4 

View  favoring  right  to  return.  But  the  rule  in  many 
of  the  United  States,  including  Massachusetts,5  Maine,6 
Maryland,7  Iowa,8  and  other  States,9  is  that  to  avoid 
circuity  of  action,  a  warranty  may  be  treated  as  a  con- 
dition subsequent  at  the  election  of  the  buyer,  who  is 
accordingly  entitled,  upon  the  seller's  breach  of  such 


§   353       REMEDIES  FOB  BREACH  OF  WARRANTY.  524 

warranty,    to   rescind   the    contract    and    return    the 
goods.10 

1  Best  v.  Flint,  58  Vt.  543  ;  56  Am.  Rep.  570.    And  in  an  action  for 
the  purchase  price  of  the  goods,  the  buyer  may  show  the  breach  of 
warranty  in  diminution  of  the  price  or  reduction  of  damages  :  Best 
v.  Flint,  58  Vt.  543;  5  Atl.  Rep.  192;  referring  to  Cutter  v.  Powell,  2 
Smith's  Lead.  Cas.  25,  26;  Waring  v.  Mason,  18  Wend.  425;  West  v. 
Cutting,  19  Vt.  5S6.    Consult,  also,  Getty  v.  Rountree,  2  Finn.  279  ;  2 
Chand.  28  ;  54  Am.  Dec.  138, 144. 

2  See  succeeding  portions  of  section.    And  consult  Brantley  v. 
Thomas,  22  Tex.  270  ;  73  Am.  Dec.  264,  267.    Compare  Johnson  v. 
McLane,  7  Black;  501 ;  43  Am.  Dec.  102,  n.  106. 

3  See  Day  v.  Pool,  52  N.  Y.  416  ;  11  Am.  Rep.  719  ;  Parks  v.  Morris 
etc.  Co.  54  N.  Y.  586 ;  Messmore  v.  N.  Y.  Shot  etc.  Co.  40  N.  Y.  422 ; 
Russ  v.  Eckler,  41  N.  Y.  488 ;  Lawton  v.  Keil,  61  Barb.  558.    Warranty 
on  executory  sales  survives  acceptance:  See  Briggs  v.  Hilton,  99 
N.  Y.  517  ;  52  Am.  Rep.  63  ;  Kent  v.  Friedman,  3  N.  E.  Rep.  905. 

4  See  Freyman  v.  Knecht,  78  Pa.  St.  141 ;  Bunce  v.  Beck,  43  Mo. 
279.    And  consult  Story  on  Sales,  §  455 ;  2  Sehouler  on  Personal  Prop- 
erty, \  579,  whence  paragraph  mainly  derived  ;  Lyon  v.  Bertram,  20 
How.  149. 

5  See  Dorr  v.  Fisher,  1  Cush.  271 ;  Bryant  v.  Isburgh,  13  Gray,  637  ; 
Morse  v.  Brackett,  98  Mass.  209. 

6  See  Marston  v.  Knight,  29  Me.  341 ;  Marshall  v.  Perry,  67  Me.  78. 

7  See  Hyatt  v.  Boyle,  5  Gill  &  J.  121. 

8  See  Rogers  v.  Hanson,  35  Iowa,  283 ;  Jack  v.  Des  Moines  R.  R. 
53  Iowa,  399. 

9  See  citations  in  next  note. 

10  2  Schouler  on  Personal  Property,  §  578,  whence  paragraph 
derived  ;  citing,  also,  Gates  v.  Bliss,  43  Vt.  299  ;  Butter  v.  Northum- 
berland, 50  N.  H.  33;  Osborn  v.  Gantz,  60  N.  Y.  540;  Youghiogheny 
Iron  Co.  v.  Smith,  6(>  Pa.  St.  340  ;  Dill  v.  Ferrell,  45  Ind.  268  ;  Marsh  v. 
Lo\y,  55  Ind.  271 ;  Ralph  v.  Chicago  etc.  Co.  32  Wis.  177.  Prompt 
notice  of  return  required  :  See  Paulson  v.  Osborn,  27  N.  W.  Rep. 
(Minn.)  203  ;  21  The  Reporter,  783  ;  citing,  on  need  of  notice,  Smalley 
v.  Hendrickson,  29  N.  J.  L.  371 ;  Dewey  v.  Erie  Borough,  14  Pa.  St. 
211 ;  Moral  School  Township  v.  Harrison,  74  Ind.  93.  Consult  further, 
on  effect  and  limit  of  right  to  reject,  2  Schouler  on  Personal  Property, 
£580. 

§  353.  Damages.  —  In  general.  Generally  speaking, 
when  personal  property  is  sold,  and  it  is  not  of  the  kind 
represented  and  warranted,  the  measure  of  damages  is 
the  difference  between  the  contract  price  and  the  value 
of  the  article  delivered.1 

Enhancement  of  damages.  Yet  the  measure  of  dam- 
ages may  sometimes  be  enhanced  by  proof  that  the 
property  was  purchased  for  a  specific  purpose,  and  that 


525  REMEDIES   FOR  BREACH   OF   WARRANTY.        §    353 

the  sale  was  made  by  the  vendor  with  the  knowledge 
that  the  property  was  intended  for  such  specific  purpose.2 

JVb  knowledge  of  special  purpose.  But  if  the  vendor 
knows  nothing  of  the  contract  made  by  the  vendee,  or 
the  specific  purpose  for  which  the  property  is  intended, 
and  knows  simply  that  the  purchaser  is  seeking  for  an 
article  of  the  kind  and  quality  named,  his  liability  is 
limited  to  the  difference  between  the  value  of  the  article 
already  delivered,  and  that  of  the  article  which  the 
parties  intended  to  purchase  and  contracted  for,3 

Place  of  computation,  etc.  Where  goods  are  to  be 
used  in  a  distant  place,  and  the  parties  so  understood, 
damages  for  breach  of  warranty  may  be  ascertained 
there.* 

1  We yb rich  v.  Harris,  31  Kan.  92  ;  Wheeler  &  Wilson  Manuf.  Co. 
v.  Thompson,  33  Kan.  491.    And  see  Sedgwick  on  Damages  (5th  ed.), 
318  ;  Story  on  Sales,  \\  449,  454,  455  ;  2  Schouler  on  Personal  Property, 

y35 ;  citing,  also,  Jones  v.  Just,  Law  B.  3  Q.  B.  197 ;  Moulton  v. 
ruton,  9  Me.  287 ;  Whitmore  v.  South  Boston  Iron  Co.  2  Allen,  52  ; 
Merrimack  Manuf.  Co.  v.  Quintard,  139  Mass.  127  ;  Muller  v.  Eno,  14 
N.  Y.  597  ;  Howie  v.  Bea,  70  N.  C.  559. 

2  Weybrich  v.  Harris,  31  Kan.  92.    Expenses,  interest,  etc.:  See 
Murry  v.  Meredith,  25  Ark.  134 ;  Furlong  v.  Polleys,  20  Me.  491 ;  Moul- 
ton v.  Scruton,  39  Me.  287  ;  2  Sedgwick  on  Damages  (7th  ed.),  185. 

3  Weybrich  v.  Harris,  31  Kan.  92.    And  see  Wheeler  &  Wilson 
Manuf.  Co.  v.  Thompson,  33  Kan.  491. 

4  Phila.  etc.  Coal  Co.  v.  Hoffman,  4  Atl.  Bep.  (Pa.)  848.    Consult 
further  on  full  value,  agreed  price, natural  consequences,  sale  to  sub- 
buyer,  delivery  by  instalments,  etc.;  2  Schouler  on  Personal  Prop- 
erty, \\  585-587. 


§   354  FRAUDULENT  SALES.  626 

CHAPTER  XXX. 

FRAUDULENT  SALES. 

2  354.  Fraud  in  general. 

(J  355.  Fraud  on  buyer  and  caveat  emptor. 

g  356.  Reliance  upon  seller's  representations. 

\  357.  What  constitutes  seller's  fraud. 

\  358.  Buyer's  remedies  for  fraud. 

\  359.  Fraud  011  seller. 

§  360.  Buyer's  fraudulent  devices. 

\  361.  Fraud  upon  creditors. 

§  354.  Fraud  in  general,  —  Distinguished  from  mistake. 
Fraud,  as  a  ground  of  avoidance  of  the  contract  of  sale, 
differs  from  mistake  in  relying  upon  misconduct  of  the 
opposite  p'arty,  rather  than  upon  one's  own  innocent 
error,  as  a  motive  for  setting  aside  the  transaction.1 

Phases  of  fraud.  Among  the  leading  causes  which 
justify  the  interference  of  the  courts  for  fraud  are  mis- 
representation,2 wrongful  concealment,3  the  abuse  of 
confidence,4  and  employment  of  force ; 5  and  it  is  said 
that  the  modes  of  fraud  are  infinite,  so  that  courts  are 
indisposed  to  lay  down  any  definition  6  of  the  word.7 

Effect,  remedies,  etc.  Fraud  is  good  ground  for  the 
non-enforcement  or  avoidance  of  a  contract  at  the 
instance  of  the  innocent  party  who  is  thereby  injured,8 
ars  it  prevents  real  assent  arid  renders  the  contract  void- 
able ab  initio;9  and  the  fraud  to  be  remedied  in  a  sale 
ma3r  be  that  of  the  seller  on  the  buyer,  or  that  of  the 
buyer  on  the  seller,  or  that  of  both  buyer  and  seller 
upon  some  third  party.10 

Voidable  and  void  transactions.  Fraud  goes  to  the 
motives  for  making  the  contract,  not  to  its  execution, 
and  only  becomes  important  as  such  when  a  sale  or 
contract  is  complete  in  its  formal  elements,  and  there- 


527  FRAUDULENT  SALES.  .  §  354 

fore  valid  until  repudiated,  though  the  right  is  claimed 
to  rescind  it.11  But  when  one  of  the  formal  constituents 
of  illegal  transactions  is  wanting,  as  the  identity  of  the 
supposed  party  dealt  with,  it  is  said  that  there  is  no 
question  of  rescission,  but  that  the  contract  is  void  ab 
initiOj  and  fraud  does  not  impart  to  it,  against  the  will 
of  the  defrauded  party,  a  validity  that  it  would  not 
have  if  the  want  was  due  to  innocent  mistake.12 

Failure  to  disclose  defects.  A  failure  on  the  part  of 
the  vendor  to  disclose  unsoundness  or  faults,  has  been 
ruled13  not  to  be  fraud  at  law.14 

Fraud  of  agent.  And  a  principal  is  an  innocent 
vendor  where  he  neither  authorized  any  representations 
to  be  made,  nor  artifice  to  be  used  by  his  agents  in  effect- 
ing the  sale  of  a  mare  which  he  knew  to  be  lame  and 
balky.15 

1  2  Schouler  on  Personal  Property,  ?  602.    And  compare  Rodliff 
v.  Dallinger,  141  Mass.  1 ;  55  Am.  Rep.  439.    The  one  party  must  do 
wrong  intentionally,  and  the  other  act  because  of  such  fraud  :    2 
Schouler  on  Personal  Property,  §  602.    Discussion  of  various  phases 
of  subject :  1  Abbott's  Law  Diet.  520 ;  1  Bouvier  Law  Diet,  (loth  ed.) 
688. 

2  See  Bigelow  on  Fraud,  4-9. 

3  See  Kohl  v.  Lindley,  39  111.  195 ;  89  Am.  Dec.  294, 298, 299.    Com- 
pare Decker  v.  Fredericks,  47  N.  J.  L.  469,  472. 

4  Bigelow  on  Fraud,  10.    Reliance  on  confidential  relations  in 
sale  of  oyster-bed :  Hemingway  v.  Coleman,  49  Conn.  390 ;  44  Am 
Rep.  243. 

5  2  Schouler  on  Personal  Property,  g  602,  on  which  paragraph 
mainly  based. 

6  See  collection  of  definitions  in  Winfield's  Words  etc.  274. 

7  See  Story's  Eq.  Juris.  §  386 ;  2  Parsons  on  Contracts  (5th  ed.), 
769  ;  1  Corbin's  Benjamin  on  Sales,  ?  636  ;  Story  on  Sales,  §  158,  et  seq. 
Action  for  deceit  by  defrauded  party :  See  Clarke  v.  Dickson,  El.  B. 
&  E.  148  ;  Queen  v.  Saddlers  Co.  10  H.  L.  Cas.  621. 

8  2  Schouler  on  Personal  Property,  \  602 

9  See  1  Corbin's  Benjamin  on  Sales,  §  636  ;  citing,  Bank  of  Georgia 
v.  Higginbottom,  9  Peters,  48  ;  Duncan  v.  McCullough,  4  Serg.  &  R. 
483.     Compare  Rodliff  v.  Dallinger,  141  Muss.  1 ;  55  Am.  Rep.  805. 
Requisites   of    representations   for   such    effect:    See    Gregory  v. 
Schoenell,  55  Ind.  101, 106.    Evidence  in  action  of  tort  for  false  and 
fraudulent  representations  in  sale  :  Bowker  v.  De  Long,  4  N.  E.  Rep. 
(Ind.)  834,  with  note,  835.    Requisites  of  recovery  for  representations 
of  solvency  of  bank  ;  knowledge,  etc. :  Cole  v.  Cassidy,  138  Mass.  437 ; 
52  Am.  Rep.  284.    Fraudulent  purpose  to  deceive :  Cowley  v.  Smith, 
46  N.  J.  L.  380 ;  50  Am.  Rep.  432. 


§   355  FRAUDULENT  SALES.  528 

10  2  Schouler  on  Personal  Property,  ?  602.    Indictment  for  obtain- 
ing money  by  false  pretenses ;  sufficiency  of  proof:  Commonwealth 
v.  Blood,  6  N.  E.  Rep.  (Mass.)  763.    Evidence  of  similar  pretenses  in 
other  recent   independent   sales:    Commonwealth  v.  Jackson,  132 
Mass.  16. 

11  RodlifF  v.  Dallinger,  141  Mass.  1  ;  55  Am.  Rep.  439.    Rescission 
and  return  of  goods :  See  Vogel  v.  Demarest,  97  Ind.  440.    Divisible 
sale  by  sample  :  Meyer  v.  Wheeler,  19  The  Reporter  (Iowa),  302. 

12  Rodliff  v.  Dallinger,  141  Mass.  1 ;  4  X.  E.  Rep.  805. 

13  According  to  Decker  v.  Fredericks,  47  N.  J.  L.  469, 472. 

14  See  Beninger  v.  Corwin,  4  Zab.  257. 

15  Decker  v.  Fredericks,  47  N.  J.  L.  469, 472  ;  referring  to  doctrine 
of  Kennedy  v.  McKay,  14  Vroom,  288. 

\  355.  Fraud  on  buyer  and  caveat  emptor.  —  Failure  to 
disclose  qualities  of  thing  sold.  A  purchaser  may  avoid 
the  contract  of  sale  for  false  and  fraudulent  representa- 
tions of  the  seller.1  But  it  is  a  general  proposition  of 
the  law  upon  this  subject  that  fraud  cannot  be  imputed 
to  one  who  fails  to  inform  the  person  with  whom  he  is  . 
dealing  of  that  which  he  was  under  no  obligation  to 
impart  to  him,'2  but  that  the  rule  of  caveat  emptor, 
which  governs  in  such  cases,  puts  upon  a  purchasing 
party  the  necessity  of  informing  himself  concerning 
the  qualities  of  any  specific  chattel,  or  incorporeal  secur- 
ity which  constitutes  the  subject-matter  of  the  sale,  and 
of  drawing  no  inference  from  outside  appearances, 
from  the  price  demanded  for  the  thing,  or  from  the 
seller's  failure  to  point  out  defects,  but  of  exercising  his 
own  judgment  so  far  as  possible,  and  asking  for  a  war- 
ranty if  he  desires  further  assurance.3 

When  fraud  not  made  out.  Hence,  the  buyer  cannot 
allege  fraud  where  he  inspects  what  he  purchases,  and 
the  defect  is  apparent;4  nor  where  a  defect  was  not 
known  to  be  such  by  the  seller,  from  appearances,  and 
no  concealment  in  order  to  deceive  was  practiced ; 5 
nor,  of  course,  where  the  buyer  takes  the  thing  with 
all  faults  ; 6  nor  where  it  appears  that  instead  of  trusting 
to  the  seller's  statements  on  the  point,  the  buyer  veri- 


629  FRAUDULENT  SALES.  $   355 

fiea  by  his  own  experts,  or  consummated  the  bargain 
upon  the  report  of  his  own  agents;7  nor  where  he 
makes  his  own  fair  examination  as  to  the  point,  and 
relies  upon  his  judgment ; 8  nor,  in  general,  where  the 
matter  was  open  to  the  buyer's  observation,  so  that,  by 
exercising  ordinary  diligence  and  prudence,  he  could 
have  ascertained  the  defect.9 

Seller's  silence.  So,  in  general,  the  seller's  silence, 
even  though  amounting  to  a  passive  acquiescence  in 
the  buyer's  self-deception  as  to  the  quality  or  intrinsic 
value  of  the  subject-matter  bargained  for,  does  not 
avoid  the  contract  for  fraud,  but  comes  within  the  pro- 
tection of  caveat  emptor.™ 

Seller's  active  conduct.  But  where  the  seller  is  guilty 
of  wilful  misrepresentation  as  to  material  points,  and 
thereby  induces  a  party  to  purchase  on  terms  that 
would  otherwise  have  been  withheld,  or  where  there  is 
wrongful  concealment,  exercise  of  force,  or  fraudulent 
conduct  generally,  caveat  emptor  does  not  apply,  and 
the  sale  is  so  far  vitiated  that  the  deceived  party  may 
disaffirm  it.11 

1  Taylor  v.  Mississippi  Mills,  1  Southw.  Rep.  (Ark.)  283 ;  citing, 
Plant  v.  Oondit,  22  Ark,  454 ;  Morton  v.  Scull,  23  Ark.  289 ;  Bight  v. 
Holler,  31  Ark.  170. 

2  See  citations  in  next  note. 

"  3  2  Schouler  on  Personal  Property,  g  603  ;  citing,  Bennett's  Ben- 
jamin on  Sales,  §  430 ;  Smith  v.  Hughes,  Law  B.  6  Q.  B.  597  ;  Jackson 
v  Wetherel,  7  Serg.  &  B.  422  ;  Gossler  v.  Eagle  Sugar  Beflnery,  103 
Mass.  331 ;  Benton  v.  Maryott,  21  N.  J.  Eq.  113.  Failure  to  disclose 
latent  defect:  Hadley  v.  Clinton  etc.  Co.  13  Ohio  St.  502  ;  82  Am.  Dec. 
454.  And  see  Cecil  v.  Spurger,  32  Mo.  462 ;  82  Am.  Dec.  140. 

4  Morse  v.  Bathburn,  49  Mo.  91. 

5  Cogel  v.  Knisely.  89  111.  598  ;  85  111.  16. 

6  Pearce  v.  Black  well,  12  Ired.  49. 

7  Howell  v.  Biddlecorn,  62  Barb.  131. 

8  Pattison  v.  Jenkins,  33  Ind.  87  ;  Stephens  v.  Orman,  10  Fla.  9. 

9  Brown  v.  Leach,  107  Mass.  364  ;  Bocchi  v.  Schwahacher,  33  La. 
An.  1364.    And  compare  Poland  v.  Brownell,  131  Mass.  38.    Source  of 
paragraph :  2  Schouler  on  Personal  Property,  §  603. 

10    Smith  v.  Hughes,  Law  B.  6  Q.  B.  579,  as  cited  in  support  of  text 
In  2  Schouler  on  Personal  Property,  §  603. 
NEWMABK  SALES.  — 45. 


§   35Q  FRAUDULENT  SAL.ES.  530 

11  2  Schouler  on  Personal  Property,  2  604  ;  citing,  Story  on  Sales, 
gg  378-380  ;  Bennett's  Benjamin  on  Sales,  §  430  ;  Regina  v.  Kenrick,  5 
Q.  B.  49;  Paddock  v.  Strobridge,  29  Vt.  470;  Manning  v  Albee,  U 
Allen,  522.  Fraud  on  buyer  in  general :  inadequate  price  (Wood  v. 
Boynton,  64  Wis.  265;  54  Am.  Rep.  610);  procuring  signature  to 
order  (Gross  v.  Dryer,  28  N.  W.  Hep.  (Wis.)  141) ;  by-bidding  and 
puffers  at  auction  sales  (Miller  v.  Baynard,  83  Am.  Dec.  168 ;  Peck 
v.  List,  23  W.  Va.  338;  48  Am.  Rep.  398);  false  representations 
(Morehouse  v.  Northrop,  89  Am.  Dec.  211) ;  burden  of  proof  in  action 
for  false  representations :  Faville  v.  Shehan,  26  N.  W.  Rep.  (Mich.) 
131,  n. 

\  356.  Reliance  upon  seller's  representation.  —  In  gen- 
eral. In  order  to  avoid  the  sale  on  the  ground  of  the 
seller's  false  representations,  the  party  purchasing 
must  have  been  deceived  by  the  representation,  and,  in 
general,  it  must  appear  that  the  buyer  trusted  to  the 
inducement  which  proves  fraudulent,  and  bought  on 
the  strength  of  it.1 

Determining  circumstances.  And  among  important 
circumstances  in  determining  the  issue  as  to  whether 
the  buyer  relied  upon  the  seller's  alleged  false  repre- 
sentations, are  the  buyer's  opportunity  to  be  present 
and  examine  the  thing  for  himself  before  concluding 
the  sale  ;2  the  character  of  the  thing,  as  in  the  case  of  a 
patent  machine  bought  of  an  expert  by  a  purchaser 
not  skilled  in  mechanical  matters,  where  the  qualities 
of  the  article  may  be  well  known  to  the  seller>  but  must 
be  taken  by  the  buyer  in  trust ; 3  or  the  resort  by  the 
seller  to  some  trick  or  artifice  for  the  purpose  of  check- 
ing examination,  or  diverting  the  buyer  from  the  line 
of  inquiry  which  he  would  otherwise  most  likely  have 
pursued.4 

1  See  Smith  v.  Hughes,  Law  R.  6  Q.  B.  597 ;  Bennett's  Benjamin 
on  Sales,  £  429 ;  Morse  v.  Rathburn,  49  Mo.  91 ;  2  Schouler  on  Personal 
Property,  \  605,  whence  paragraph  derived.    But  the  buyer's  right  to 
r  ly  upon  the    seller's  false  statements   is  favored:  Redgrave  v. 
Hurd,  Law  R.  20  Ch.  D.  1 ;  Collins  v.  Dennison,  12  Met.  549. 

2  Vandewalker  v.  Osmer,  65  Barb.  556 ;  Smith  v.  Richards,  13 
Peters,  26 ;  Bendurant  v.  Crawford,  22  Iowa,  40. 

3  See  Page  v.  Dickerson,  28  Wis.  694  ;  Kendall  v.  Wilson,  41  Vt.  567. 

4  See  Story  on  Sales,  g  381  ;  Smith  v.  Hughes,  Law  R.  6  Q.  B.  597  ; 
Roseman  v.  Canovan,  43  Cal.  110  ;  2  Schouler  on  Personal  Property, 
g  604,  whence  paragraph  derived. 


531  FRAUDULENT  SALES.  g   357 

§  357.  What  constitutes  seller's  fraud.  —  Fraudulent 
concealment.  There  are  circumstances  under  which  a 
seller's  concealment  of  facts  known  to  him  becomes 
fraudulent,  notwithstanding  he  says  nothing.1  Thus 
among  the  instances  where  silence  on  the  part  of  the 
seller  carries  with  it  the  legal  consequences  of  positive 
misrepresentation  "because  it  was  the  seller's  duty  to 
speak  out,  is  that  of  selling  fodder  upon  which  poison 
has  been  spilled  ; 2  that  of  putting  out  a  prospectus  or 
advertisement  with  artful  concealments,  so  as  to  give  a 
false  impression;3  and  that  of  wilfully  hiding  some 
internal  defect  which  rendered  the  thing  worthless.4 

Positive  misrepresentations.  Confidence  should  not 
be  placed  in  mere  statements  of  the  seller,  not  amount- 
ing to  warranty.5  But  a  buyer  has  a  right  to  trust  the 
seller  as  to  matters  not  within  his  knowledge  ; 6  and  as 
any  seller  may  make  an  express  warranty,  so  he  is  held 
to  responsibility  for  false  statements  by  way  of  induce- 
ment, even  though  the  buyer  might  have  ascertained 
the  falsehood  by  inquiry.7 

Statements  concerning  price.  The  principle  has  been 
recognized  that  a  misrepresentation  as  to  the  market 
price  of  an  article  of  general  commerce,  made  falsely 
and  fraudulently  by  one  party  to  induce  a  sale,  and  re- 
lied upon  by  the  other,  will  not  avoid  a  contract  there- 
for, when  there  are  no  circumstances  making  it  the 
special  duty  of  the  one  party  to  communicate  the  knowl- 
edge he  possesses,  and  none  giving  him  the  peculiar 
means  of  ascertaining  such  market  price.8  But  where 
the  seller  agreed  to  sell  a  stock  of  staple  groceries  suit- 
able for  the  buyer's  trade,  of  first-class  quality,  at 
prices  greatly  below  the  current  rates  for  such  goods, 
and  the  buyers  relied  upon  these  representations  and 
permitted  the  seller  to  select  and  ship  the  goods,9  evi- 
dence is  relevant,10  which  tends  to  show  that  the  stock 


§   358  FRAUDULENT  SALES.  532 

of  goods  had  been  fraudulently  billed  and  charged  at 
current  rates,  and  in  some  instances  above  current 
rates.11 

1  2  Schouler  on  Personal  Property,  ?  604. 

2  French  v.  Vining,  102  Mass.  135. 

3  Oakes  v.  Turquand,  Law  R.  2  H.  L.  235. 


597. 

5  See  Manning  v.  Albee,  11  Allen,  522  ;  Walker  v.  Pue,  57  Md.  155  ; 
2  Hehonlor  on  Personal  Property,  §  603,  making  these  citations  in 
support  of  text. 

6  2  Schouler  on  Personal  Property,  §  604. 


man,  1  Atl.  Rep.  (Pa.)  40.    Representat 


man,  i  AH.  nep.  ifu»;  *u.  .tvepi  iminon  oy  director  mat  oonas  01 
corporation  good:  Drake  v.  Grant,  36  Hun,  464.  Misrepresentations 
by  executor  concerning  sale  of  stock  :  Keen  v.  James,  39  N  J.  Eq. 
527  ;  51  Am.  Rep.  29. 


8  See  Graffenstein  v.  Epstein,  23  Kan.  443. 

9  Cavender  v.  Roberson,  33  Kan.  626. 
10    See  Lord  v.  French,  61  Me.  420. 


p: 

q 

§  358.  Buyer's  remedies  for  fraud.  —  Choice  of  remedies. 
Upon  the  discovery  by  the  buyer  of  fraud  in  the  repre- 
sentations inducing  a  sale  of  personal  property,  such 
as  a  stock  of  goods  and  the  good-will  of  the  business, 
he  has  his  election  to  rescind  the  sale  and  return  the 
property,1  or  to  retain  the  property  and  prosecute  his 
claim  for  damages  either  by  an  original  action  or  as  a 
counter-claim  to  an  action  against  him  for  the  purchase 
money,  brought  by  the  party  committing  the  fraud.2 

Uode  of  rescission.  An  acceptance  of  goods  under  a 
contract,  when  induced  by  the  seller's  fraud,  leaves  the 


533  FRAUDULENT   SALES.  $   358 

buyer  still  at  liberty  to  rescind  upon  discovering  the 
fraud;3  but  within  a  reasonable  time  after  discovering 
the  fraud,  he  must  act  upon  his  discovery  by  refusing 
to  complete  the  purchase,  if  the  goods  are  already  de- 
livered, or  else  returning  or  offering  to  return  them, 
and  demanding  a  return  of  the  price  if  the  goods  are 
already  paid  for ; 4  though  the  buyer  is  relieved  from 
the  obligation  to  return  where  the  goods  are  of  no  value 
to  seller  or  buyer,5  or  were  destroyed  in  making  the 
test  necessary  to  show  the  fraud.6  It  has  been  recently 
held  in  substance  that  where  the  contract  has  been  in- 
duced by  fraud,  it  is  not  necessary  that  the  buyer  should 
absolutely  tender  what  he  has  received,  though  he 
ought  to  give  notice  of  his  intention  to  rescind,  and  that 
he  will  not  abide  by  the  contract,  and  ought  to  be  in  a 
situation  upon  the  trial  to  put  the  other  party  in  the 
situation  in  which  he  was  at  the  time  of  the  discovery 
of  the  fraud.7 

Measure  of  damages.  The  rule  for  the  estimation  of 
damages  resulting  from  fraudulent  representations  in 
the  sale  of  real  and  personal  property  is,  to  ascertain 
the  difference  between  the  value  of  the  property  as  it 
actually  existed  on  the  day  of  sale  and  its  value  as  it 
was  represented  to  be.8 

1  See  citations  in  next  note. 

2  Herefort  v.  Cramer,  7  Colo.  483  ;  citing,  Whitney  v.  Allaire,  4 
Demo,  536  ;  Lilly  v.  Bandall,  3  Colo.  298.    And  see  Cavender  v.  Bober- 
BO n,  33  Kan.  626 ;  7  Pacif.  Bep.  152 ;  citing,  Weybrich  v.  Harris,  31 
Kan.  92  ;  1  Pacif.  Kep.  271 ;  Lord  v.  French,  61  Me.  420;  Wheeler  & 
Wilson  Manuf.  Co.  v.  Thompson,  33  Kan.  491 ;  6  Pacif.  Bep.  902. 

3  Dutchess  Co.  v.  Harding,  49  N.  Y.  321.    Bescission  for  fraud  on 
buyer  :  Gaty  v.  Holcomb,  44  Ark.  216. 

4  See  Gatling  v.  Newell,  9  Ind.  572  ;  Matteson  v.  Holt,  45  Vt.  336 ; 
Pence  v.  Langdon,  99  U.  S.  578  ;  Hall  v.  Fullerton,  2  Hill,  292  ;  Mana- 
han  v.  Noyes,  52  N.  H  232  ;  Garland  v.  Spencer,  46  Me.  528  ;  Collins  v. 
Townsend,  58  Cal.  608  ;  Story  on  Sales,  §  458  ;  Bennett's  Benjamin  on 
Sales,  §  452.    Consult,  also,  on  return  of  consideration,  Johnson  v. 
Frew,  33  Hun,  193. 

5  See  various  citations  in  last  note,  and  Brewster  v.  Burnett,  125 
Mass.  68  ;  Pence  v.  Langdon,  99  U.  S.  578. 


§   359  FRAUDULENT  SALES.  534 

6  See  Pacific  Guano  Co.  v.  Mullen,  66  Ala.  582.    Source  of  para- 
graph :  2  Schouler  on  Personal  Property,  §  605. 

7  American  Wine  Co.  v.  Brasher,  13  Fed.  Kep.  595,  603.    And  gen- 
erally the  latest  decisions  are  quite  lenient  to  the  buyer  in  dispensing 
with  a  strict  tender  and  other  formalities  of  rescission,  so  long  as  he 
has  not  exercised  acts  of  ownership  while  delaying,  and  so  far  as  the 
informalities  or  delay  are  not  set  up  by  the  defrauding  party  him- 
self: 2  Schouler  on  Personal  Property,  \  605  ;  referring  to  Van  Trott 
v.  Wiese,  36  Wis.  439;  Hendrickson  v.  Hendrickson,  51  Iowa,  68; 
Potter  v.  Taggart,  54  Wis.  395;  and  quoting,  Spence  v.  Langdon,  99 
U.  S.  578.    Placing  in  statu  quo,  exercise  of  election,  fraud,  and  war- 
ranty, liability  for  agent's  acts,  etc.:  2  Schouler  on  Personal  Prop- 
erty, ??  605-307.    Fraudulent  warranty  suit:  See,  also,  Sweeney  ?, 
Vroman.  60  Wis.  278.    Freedom  of  principal  for  liability  for  unauthor- 
ized representations,  etc.,  of  agent :  Decker  v.  Fredericks,  47  N.  J.  L. 
469  ;  stating  doctrine  of  Kennedy  v.  McKay,  14  Vroom,  288. 

8  Herefort  v.  Cramer,  7  Colo.  483  ;  citing,  Morse  v.  Hutchins,  102 
Mass.  439  ;  Wright  v.  Roach,  57  Me.  600. 

§  359.  Fraud  on  seller.  —  Passing  of  title  or  possession. 
Whenever  property  is  obtained  from  the  owner  by 
fraud,  it  is  important  to  determine  whether  the  facts 
show  a  sale  to  the  party  guilty  of  the  fraud,  or  a  mere 
delivery  of  it  into  his  possession  as  a  result  of  the 
fraudulent  devices  practiced.1  In  the  former  case, 
where  the  title  passes  and  not  the  bare  possession  only, 
there  is  a  contract  of  sale  which  is  voidable  only  and 
not  void,2  so  that  the  defrauded  seller  may  at  his  option 
confirm  or  repudiate  it,  as  the  contract  only  becomes 
void  after  it  has  been  avoided.3 

Seller's  remedies.  Therefore  in  the  case  of  a  sale  of 
goods  induced  by  fraud  of  the  vendee,  the  vendor  may 
sue  in  assumpsit  for  the  price,  in  affirmance  of  the  con- 
tract, or  in  trover  or  replevin,  in  disaffirm ance  of  it.* 

Protection  of  bona  fide  purchaser.  But  until  the 
vendor  has  done  some  act  to  disaffirm  the  transaction 
the  property  vests  in  the  vendee,  and  hence  an  inno- 
cent transferee,  for  value,  takes  the  title,5  as  the  mere 
fact  that  the  contract  may  be  afterwards  rescinded  does 
not  affect  its  intermediate  efficiency.6 

False  personation.  In  cases  of  false  personation, 
however,  it  has  been  held  that  no  title  passes,7  but  this 
distinction  arises  out  of  the  consideration  that  no  con- 


535  FRAUDULENT  SALES.  \  359 

tract  is  in  such  case  made  with  the  party  personated , 
and  none  is  contemplated  with  the  false  personator,  so 
that  the  title  remains  in  the  vendor,  and  the  transac- 
tion is  wholly  inoperative  even  as  to  third  persons.8 

Burden  of  proof,  creditors,  etc.  One  who  claims  to  be 
a  bona  fide  purchaser  from  the  fraudulent  buyer  has 
the  burden  of  showing  that  such  is  the  case,  as  against 
the  defrauded  seller  ;9  and  no  such  claim  can  be  main- 
tained by  the  attaching  or  execution  creditors  of  the 
buyer,  who  merely  stand  in  his  place  in  regard  to  the 
title  he  acquired.10 

1  Alexander  v.  Swackhamer,  105  Ind.  81 ;  55  Am.  Rep.  180.    And 
see  Neff  v.  Landis,  1  Atl.  Kep.  (Pa.)  177  ;  21  The  Reporter,  60. 

2  See  §  200,  on  VOIDABLE  OB  DEFEASIBLE  TITLE. 

3  See  Neff  v.  Landis,  1  Atl.  Rep.  (Pa.)  177 ;  21  The  Reporter,  60. 
But  fraud  held  to  vitiate  sale  in  Amer  v.  Hightower,  11  Pac.  Rep, 
(Cal.)  697. 

4  See  Old  Dom.  Steamship  Co.  v.  Burckhardt,  31  Gratt.  664 ;  Neff 
v.  Landis,  1  Atl.  Rep.  (Pa.)  177 ;  21  The  Reporter,  60.    Seller's  reme- 
dies for  fraud :  2  Schouler  on  Personal  Property,  \  613     Return  of 
goods:  Sharp  v.  Ponce,  76  Me.  350.    Return  of  consideration  before 
replevin  suit :  Doane  v.  Lockwood,  4  N.  E.  Rep.  (111.)  500.    Where  sale 
under  value,  no  waiver  of  action  by  taking  price  :  Mallory  v.  Leach, 
82  Am.  Dec.  625.    Effect  of  rescission :  Doane  v.  Lockwood,  4  N.  E. 
Rep.  (111.)  500. 

5  See  Stevenson  v.  Newnham,  13  Com.  B.  285  ;  Mears  v.  Waples, 
3  Iloust.  581 ;  Williams  v.  Given,  6  Gratt.  268  ;  §  202,  on  TITLE  OF 
FRAUDULENT  VENDEE. 

6  Neff  v.  Landis,  1  Atl.  Rep.  (Pa.)  177 ;  21  The  Reporter,  60.    And 
see  Old  Dom.  Steamship  Co.  v.  Burckhardt,  31  Gratt.  664  ;  Alexander 
v.  Swackhamer,   105  Ind.  81 ;   55  Am.  Rep.  180 ;   citing,  Curme  v. 
Rauh,  100  Ind.  247 ;  Parrish  v.  Thurston,  87  Ind.  437.    Protection  of 
bfma  fide  purchaser  fully  discussed:  See  #§197-203.    prevalence  of 
exemption :  §  204,  citing  the  cases  on  the  subject.    And  see  Perkins 
v.  Anderson,  19  The  Reporter  (Iowa),  112. 

7  See  2  205,  on  LIMITATIONS  OF  EXEMPTION. 

8  Neff  v.  Landis,  1  Atl.  Rep.  (Pa.)  177 ;  21  The  Reporter,  60. 

9  See  Devoe  v.  Brandt,  53  N.  Y.  462 ;  McLeod  v.  First  Nat.  Bank,  42 
Miss.  {).") ;  Lynch  v   Beecher,  38  Conn.  41)0  ;  Porter  v.  Parks,  49  N.  Y. 
5G4.    But  compare  contra,  Mears  v.  Waples,  3  Houst.  581. 

10  See  Sargent  v.  Sturm,  23  Cal.  350 ;  83  Am.  Dec.  118 ;  Jordan  v. 
Parker,  56  Me.  557  ;  Thompson  v.  Rose,  16  Conn.  71 ;  Hartt  v.  Mc- 
Neil, 47  Mo.  526;  Field  v.  Stearns,  42  Vt.  106;  Devoe  v.  Brandt,  53 
N  Y.  462;  Oswego  Starch  Factory  v.  Lendrum,57  Iowa,  573  ;  42  Am. 
Hop.  53 ;  Ensign  v  Hoffield,  4  Atl.  Rep.  (Pa.)  189.  Sources  of  para- 
graph :  2  Schouler  on  Personal  Property,  §  609  ;  Oswego  Starch  Fac- 
tory ?'.  Lendrum,  57  Iowa,  573  ;  42  Am.  Rep.  53  ;  Sargent  v.  Sturm,  23 
Cal.  350  ;  83  Am.  Dec.  118;  "Title  from  Fraudulent  Vendees,"  etc.  7 
JSont'i.  L.  Rev.  N.  S.  519,  569.  Purchaser  from  fraudulent  vendor 
may  give  title  to  bona  fide  purchaser :  Sharp  v.  Jones,  81  Am.  Dec.  389. 


§   360  FRAUDULENT  SALES.  536 

§  360.  Buyer's  fraudulent  devices.  —  Inducements  to 
contract.  The  fraudulent  devices  of  the  buyer,  embrac- 
ing any  of  the  infinite  phases  of  deceit,  which  make 
a  sale  voidable,  except  against  a  further  innocent  pur- 
chaser, may  be  the  inducement  to  the  contract,  as  in 
the  case  of  misrepresentations  of  pecuniary  standing,1 
forged  recommendations,2  and  the  like.3 

Concerning  consideration.  So  the  fraudulent  devices 
may  touch  the  consideration,  as  where  payment  is 
made  in  worthless  securities,  fictitious  bills,  counterfeit 
money,  or  stolen  property.4 

Design  not  to  pay.  And  the  fraud  may  also  arise 
from  the  intent  of  the  vendee,  as  a  preconceived  design 
never  to  pay  for  the  goods,  if  distinctly  shown,  is  by 
the  weight  of  American  authority  deemed  sufficient 
ground  for  the  vendor  to  avoid  the  sale,  though  there 
were  no  false  representations  or  fraudulent  pretenses.5 

1  See  Luckey  v.  Roberts,  25  Conn.  486;  Devoe  v.  Brandt  53 1ST.  Y. 
462  ;  Ensign  v.  Hoffleld,  4  Atl.  Rep.  (Pa.)  189.    Representations  as  to 
credit :  See  Lyon  v.  Briggs,  14  R.  I.  222 ;  51  Am.  Rep.  372 ;  Genesee 
County  Savings  Bank  v.  Mich.  Barge  Co.  52  Mich.  164.    Buyer's  false 
representatipns  of  ability  to  pay:  Cain  v.  Dickenson,  60  N.  H.  371. 
Representations  through  mercantile  agency  :  DeickerhofF  v.  Brown , 
21  The  Reporter  (Md.)  583;   citing,  Victor  v.  Hanlien,  33  Hun,  549. 
Concealing  indebtedness:  Newell  v.  Randall,  32  Minn.  171  ;  50  Am. 
Hop.  562.    Failure  to  disclose  extent  of  borrowed  capital:  Deicker- 
hofF?;. Brown,  21  The  Reporter  (Md.)  583.    Buyer's  fraud  as  to  credit 
of  a  third  party  :  2  Schouler  on  Personal  Property,  §  612. 

2  Mowrey  v.  Walsh,  8  Cowen,  238. 

3  "Title  from  Fraudulent  Vendees,"  etc.  7  South.  L.  Rev.  N.  S. 
540,  563.    Concealment  of  information,  etc. :  2  Schouler  on  Personal 
Property,  §  611. 

4  See  Manning  v.  Albee,  17  Allen,  520 ;  White  v.  Garden,  10  Com. 
B.  919  ;  Cochrau  v.  Stewart,  21  Minn.  435  ;  Arnott  ?;.  Cloudas,  4  Dana, 
300  ;  Williams  v.  Given,  6  Gratt.  2G8 ;  Green  v.  Humphrey,  50  Pa.  St.  212 ; 
Titcomb  v.  Wood,  38  Me.  5(53 ;  Lee  v.  Portwood,  41  Miss.  103  ;  Arendale 
v.  Morgan,  5  Sneed,  783.    Obtaining  goods  by  false  pretenses :  £  206. 

5  "Title  from  Fraudulent  Vendees,"  etc.  7  South.  L.  Rev.  N.  S. 
549,563,  and  cases  collected.    Consult,  also,  Belding  v.  Frankland,  8 
Lea,  67  ;  41  Am.  Rep.  630 ;  Oswego  Starch  Factory  v.  Lendrum,  57 
Iowa,  573 ;  42  Am.  Rep.  53 ;  Bump  on  Purchases  by  Insolvents,  6 
South.  L.  Rev.  N.  S.  481,  485 ;  Thompson  v.  Taylor,  15  Phila.  250  ; 
Carnahan  v.  Bailey,  28  Fed.  Rep.  519  ;  Lee  v.  Simmons,  27  N.  W.  Rep. 
(Wis.)  174,  n.  176 ;  Hanchett  v.  Mansfield,  16  111.  App.  407 ;  Catlin  v. 
Warren,  16  111.  App.  418  ;  Burrill  v.  Stevens,  73  Me.  395  ;  40  Am.  Rep. 
36S ;  Des  Farges  v.  Pucrh,  93  N.  C.  31  ;  53  Am.  Rep.  446 ;  Taylor  v. 
Mississippi  Mills,  1  South.  Rep.  (Ark.)  283. 


FRAUDULENT  SALES.  g   361 

§  361.  Fraud  upon  creditors.  —  In  general.  The  fraud 
of  parties  to  sales  upon  their  creditors,1  presents  few 
questions  peculiar  to  the  law  of  sales.2 

Retention  of  possession.  Retention  of  possession  of 
chattels  by  the  seller  is,  in  the  United  States,  evidence 
more  or  less  conclusive  of  fraud  upon  the  rights  of  third 
parties ; 3  but  the  main  point  of  difference  is  whether 
such  retention  is  only  prima  facie  evidence  of  fraud  or 
fraud  per  «se.4 

Collusiveness  of  presumption  of  fraud.  And  while 
the  general  principle  favored  in  England  and  in  Amer- 
ica is,5that  possession  affords  only  prima  facie  evidence 
of  fraud,  which  may  be  sustained  or  rebutted  by  proof 
of  other  circumstances,  yet  the  stricter  doctrine  has  pre- 
vailed in  the  federal  courts  and  in  some  of  the  States, 
that  an  absolute  bill  of  sale  unaccompanied  by  a  cor- 
responding change  of  possession,  is  of  itself  a  fraud  in 
law.6 

Statutory  regulation.  Statute  provisions  on  this  sub- 
ject exist  in  various  States,  as  in  New  York,  Maryland, 
Delaware,  Missouri,  Indiana,  Iowa,  Minnesota,  Wis- 
consin, Nebraska,  and  California.7 

Requisites  of  delivery.  It  is  said  to  be  now  well 
settled  that  a  change  of  location  of  the  property  is  not 
in  all  cases  essential,  on  the  sale  of  a  chattel,  to  consti- 
tute a  valid  delivery  as  against  third  persons,  but  that 
due  regard  must  be  had  to  the  character  of  the  property, 
the  nature  of  the  transaction,  the  position  of  the  parties, 
and  the  intended  use  of  the  property.8  And  a  transfer 
of  personal  property,  accompanied  by  an  actual,  im- 
mediate, and  continued  change  of  possession,  is  not 
fraudulent  as  to  creditors  because  made  in  consideration 
of  a  promise  by  the  transferee  to  use  the  property  in  a 
certain  manner,  which  would  confer  pecuniary  profit  on 
the  transferrer.9  But  it  has  been  held  that  the  circum- 


§   361  FRAUDULENT  SALES.  538 

stances  that  the  creditors  knew  of  a  sale,  and  practically 
conceded  that  the  purchase  was  in  good  faith,  in  no 
manner  operated  as  a  waiver  so  as  to  relieve  the  pur- 
chaser from  compliance  with  the  peremptory  terms  of 
a  statute,  raising  a  conclusive  presumption  of  fraud  from 
want  of  the  requisite  change  of  possession.10 

1  Consult  generally  on   this  subject.  "Walden    v.   Murdock,  23 
Cal.  540 ;  83  Am.  Dec.  135,  n.  141.    Bills  of  sale  acts:  See  2  Schouler 
on    Personal   Property,  §616,  note   on    p.  629.    ISIo   fraud  in    law: 
Wall  v.  Wall,  3  Atl.  Rep.  (Pa.)  25.    Preference  by  insolvent :  Boss 
v.  Sedgwlck,  10  Pacif.  Rep.  (Cal.)  400.    Hindering,  etc.:  Beck  with 
v.  Burrough,  14  R.  I.  366 ;  51  Am.  Rep.  392.    Selling  goods  at  dis- 
count not  badge  of  fraud  :  Barnes  v.  Foxen,  53  Mich.  475.    Selling  on 
unusually  long  credit:  Spaulding  v.  Adams,  63  Iowa,  437.    Buyer's 
knowledge  of  fraudulent  purpose  insufficient :  Holmes  v.  Braidwood, 

82  Mo.  610. 

2  Vendor's  statements,  etc.:  Gallagher  v.  Williamson.  23  Cal.  331  • 

83  Am.  Dec.  114,  n.  117.    Return  of  excess:  Reeves  v.  Seeburn,  16 
J;AV:I  2:)4  ;  85  Am.  Dec.  513.    Preference,  counter-branding  cattle,  etc.: 
Walden  v.  Murdock,  23  Cal.  540  ;  83  Am.  Dec.  135,  n.  141.    Intent  to 
avoid  liability  for  support  of  bastard  child :  Schuster  v.  Stout,  30  Kan. 
529. 

3  See  Bennett's  Benjamin  on  Sales,  \  675,  n.  d,  reviewing  the  cases ; 
Fairfield  Bridge  Co.  v.  Nye,  60  Me.  372 ;  Coburn  v.  Pickering,  3  N.  H. 
415  ;  Rothchilfl  v.  Howe,  44  Vt.  389  ;  Ingalls  v.  Herrick,  108  Mass.  351 ; 
Clow  v.  Woods,  5  Serg.  &  R.  275 ;  Capron  v.  Porter,  43  Conn.  283  ; 
Robbins  v.  Oldham,  1  Duval,  28  ;  Gilbert  v.  Decker,  53  Conn.  401. 

4  2  Schouler  on  Personal  Property,  §  615.    No   presumption  of 
fraud  :  Jones  v.  Simpson,  6  Sup.  Ct.  Rep.  538. 

5  But  see  Pregnall  v.  Miller,  21 S.  C.  385 ;  53  Am.  Rep.  684, 685. 

6  See  2  Kent  Com.  520-532 ;  Story  on  Sales,  ??  510-529  ;  Bennett's 
Benjamin  on  Sales,  675,  n.  d;  2  Schouler  on  Personal  Property,  §616  ; 
citing,  also,  Stats.  13  Eliz.  ch.  5,  and  27  Eliz.  ch.  4  ;  Stats.  17, 18  Viet. 
ch.  36  ;  Edwards  v.  Harben,  2  Term  Rep.  587.    Concurrent  possession  : 
Brawn  v.  Keller,  43  Pa.  St.  104 ;  82  Am.  Dec.  554  ;  Hall  v.  Parsons,  17 
Vt.  271.    Pre-existing  debt,  etc.:  Sargent  v.  Sturm,  23  Cal.  350  ;  83  Am. 
Dec.  118,  n.  122 ;  Pregnall  v.  Miller,  21  S.  C.  385 ;  53  Am.  Rep.  684 ; 
Dolan  v.  Van  DAnark,  10  Pacif.  Rep.  (Kan.)  848. 

7  2  Schouler  on  Personal  Property,  ?  616.    See  Harter  v.  Donahoe, 
9  Pacif.  Rep.  (Cal.)  651 ;  Bassinger  v.  Spangler,  10  Pacif.  Rep.  (Colo.) 
809, 818  ;  O'Gara  v.  Lowry,  5  Mont.  427  ;  McKee  v.  Bassick  Min.  Co.  8 
Pacif.  Rep.  (Colo.)  501. 

8  Cessna  v.  Nimick,  4  Atl.  Rep.  (Pa.)  193.    And  see  Chase  v.  Gar- 
rett,  1  Atl.  Rep.  (Pa.)  912.    Delivery  of  animals  and  chattels  gener- 
ally: Williams  v.  Lerch,56  Cal.  330.    Insufficiency  of  stenciling  of 
vendee's  name  on  sides  of  railroad  cars:  Rafferty  v.  McKenna,  1  Atl. 
Rep.  (Pa.)  546.    Retaining  old  sign,  etc.:  Brown  v.  Kimmel,  67  Mo. 
430  ;  Bassinger  v.  Spangler,  10  Pacif.  Rep.  (Colo.)  809,  816.    Actual  and 
continued  change  of  possession:  Stevens  v.  Irwin,  15  Cal.  503  ;  God- 
chaux  v.  Mulford,  26  Cal.  316 ;  Bassinger  v.  Spangler,  10  Pacif.  Rep. 
809,  816 ;  O'Gara  v.  Lowry,  5  Mont.  427.    And  see  Norton  v.  Doolittle, 
32  Conn.  405.    Leaving  carpets  in  brother's  house :  Evans  v.  Scott,  89 
Pa.  St.  136.    Bill  of  sale  Saturday  and  possession  taken  early  Sunday 


FRAUDULENT  SALES.  §   361 

morning :  Kleinschmidt  v.  McAndrews,  6  Sup.  Ct.  Rep.  761.  Insuffi- 
ciency of  selecting,  packing,  marking,  charging,  etc. :  Davis  v.  Meyer, 
1  Southw.  Rep.  (Ark.)  95,  n.  96.  Brother's  control  of  furniture  in. 
lodging-house:  Ross  v.  Sedgwick,  10  Pacil  Rep.  (Gal.)  400.  Brother 
driving  team  sold:  O'Gara  v.  Lowry,  5  Mont.  427.  No  change  of 


custody  or  situation  of  cattle :  James  v.  Fulkerth,  7  Pacif.  Rep.  (Cal.) 
768.  Exempt  property:  Barton  v.  Brown,  8  Pacif.  Rep.  (Cal.)  f'~ 
Notice  to  custodian  :  Lufkins  v.  Collins,  7  Pacif.  Rep.  (Idaho)  95. 


*  9  Lewin  v.  Hopping,  8  Pacif.  Rep.  (Cal.)  73,  n.  75,  fully  discussing 
subject  of  fraudulent  transfer.  Belief  of  vendee  that  price  to  be  used 
in  settling  debts:  St.  Louis  Coffin  Co.  v.  Rubelman,  15  Mo.  App.  280. 


.  .    .  ,  .          .       . 

Employment  of  vendor  in  subordinate  capacity  :  O'Gara  v.  Lowry,  5 
Mont.  427  ;  Godchaux  v.  Mulford,  29  Cal.  325.  Employment  of  vend 
or's  brother:  Steele  v.  Miller,  1  Atl.  Rep.  (Pa.)  434  ;  21  The  Reporter 
92;  citing,  Billingsley  v.  White,  59  Pa.  St.  464,  467;  McKibben  v'. 
Martin,  64  Pa.  St.  352.  See,  also,  Goldstone  v.  Nunan,19The  Reporter, 
(Cal.)  680.  Sale  by  husband  to  wife:  Leavitt  v.  Jones,  54  Vt.  423  ;  41 
Am  Rep.  849  Insolvent  father's  sale  to  daughter  of  mare  kept  on 
farm  for  a  time  :  McClure  v.  Torney,  107  Pa.  St.  414.  Business  carried 
on  under  same  name  :  Wolf  v.  Kahn,  62  Miss.  814.  Sufficient  change 
of  possession  through  day's  delay,  etc.  :  O'Gara  v.  Lowry,  5  Mont.  4:27. 
Wagon  left  in  seller's  possession,  etc.:  Parker  v.  Mar  veil,  60  N.  H. 
30.  Storer  of  goods  stating  that  they  belonged  to  seller  :  WTing  ?>. 
Peabody,  57  Vt.  19.  Delivery  unnecessary  where  logs  on  low,  wet 
land:  Kingsley  v.  White,  57  Vt.  565.  Horse,  etc.,  kept  in  barn  of 
seller's  house:  Ziegler  v.  Handrick,  106  Pa.  St.  57.  Symbolical  deliv- 
ery, good  transfer  of  possession  :  Sharp  v.  Carroll,  27  N.  W.  Rep. 
(Wis.)  82.  Nailing  up  holes  in  corn-crib  :  Pope  v.  Cheeney,  27  N.  W. 
Rep.  (Iowa)  754,  citing  cases  and  discussing  requisites.  Delivery  not 
practicable  :  Kingsley  v.  White,  57  Vt.  565  ;  20  The  Reporter,  671,  dis- 
cussing cases.  Transfer  of  coal-pits:  Tognini  v.  Kyle,  45  Am.  Rep. 
442.  Property  in  possession  of  bailee:  Steele  v.  Miller,  1  Atl.  Rep. 
(Pa.)  434  ;  21  The  Reporter,  92.  And  see  Campbell  v.  Hamilton,  63 
Iowa,  293. 

10  Bassinger  v.  Spangler,  10  Pacif.  Rep.  (Colo.)  809,  816;  citing. 
Perrin  v.  Reed,  35  Vt.  2  ;  Lawrence  v.  Burnham,  4  Nev.  361.  Bill  of 
sale  not  enough:  Comaita  v.  Kyle,  19  The  Reporter  (Nev.)  345.  No 
change  of  possession  ;  absolute  changed  to  conditional  sale  :  Wagner 
v.  Commonw.  19  The  Reporter  (Pa.)  696. 


362  ILLEGAL  SALES.  540 


CHAPTER  XXXI. 

ILLEGAL  SALES. 

$  362.  In  general. 

$  363.  Knowledge  of  guilty  purpose. 

2  364.  Insufficiency  of  mere  knowledge. 

§  365.  Participation  and  aiding. 

$  366.  Executory  and  executed  contracts. 

%  367.  Sales  illegal  at  common  law. 

\  368.  Violation  of  public  policy. 

f  369.  "Wagering  contracts. 

\  370.  Concerning  public  offices  and  officers. 

\  371.  Concerning  litigation. 

§  372,  Restraint  of  trade. 

\  373.  Transfer  of  good-will. 

§  374.  Violation  of  statutes. 

g  375.  Sales  of  intoxicating  liquors. 

§  376.  Sunday  sales. 

g  362.  In  general.  —  As  utterly  void.  A  contract  of 
sale  which  the  law  makes  illegal,  is  not  merely  voidable, 
as  it  is  when  infected  with  fraud,  but  is  utterly* void  and 
cannot  be  enforced  on  either  side  j1  so  that  an  innocent 
person  who  has  been  led  into  a  bargain  which  he  finds  to 
be  illegal,  has  no  option  but  to  drop  it,  as  he  can  neither 
defend  nor  sue  upon  the  bargain,  and  may  render  him- 
self criminally  liable  if  he  goes  on  with  the  transaction.2 

At  common  law  and  under  statute,  etc.  There  are  ille- 
gal sales  at  the  common  law,  and  illegal  sales  founded 
in  statute,3  the  effect  of  the  illegality  in  the  latter  sense 
merely  being  liable  to  special  regulation.4 

Mala  in  se  and  mala,  prohibita.  But  the  ol d  distinction 
taken  between  mala  in  se  and  mala  prohibita,  though  it 
has  been  said  that  the  moral  feeling  and  common  sense 
of  men  do  discriminate,5  is  not  countenanced6  by  the 
later  authorities.7 


Ml  ILLEGAL  SALES.  §  362 

Unlawful  scope  of  contract.  And  it  is  regarded  as  now 
well  settled  that  any  promise,  contract,  or  undertaking, 
the  performance  of  which  would  tend  to  promote,  ad- 
vance, or  carry  into  effect  an  object  or  purpose  which  is 
unlawful,  is  in  itself  void,  and  will  not  maintain  an 
action,8  as  the  law  which  prohibits  the  end  will  not  lend 
its  aid  in  promoting  the  means  designed  to  carry  it  into 
effect.9 

Knowledge  or  participation.  The  doctrine  sustained 
by  the  great  weight  of  authority  is  said  to  be  to  the 
effect  that  knowledge  alone  by  the  vendor  of  the  in- 
tended unlawful  use  of  the  property  by  the  vendee,  is 
not  sufficient 10  to  defeat  the  vendor's  action  against  the 
vendee  for  the  purchase  price  of  goods  sold  and  de- 
livered;11 but  that  it  must  further  be  shown  that  the 
vendor  sold  the  goods  for  the  purpose  that  the  law 
should  be  violated,  or  that  he  had  some  interest  in  the 
violation  of  the  law,  or  that  he  participated  in  some 
manner12  in  the  unlawful  purpose.13 

Executed  and  executory  contracts.  In  fact,  courts  do 
not  like  to  relieve  parties  from  their  contracts  after  the 
contracts  have  been  executed  and  performed  on  the 
other  side,14  and  after  the  parties  asking  to  be  relieved 
have  received  and  enjoyed  all  the  fruits  and  benefits 
which  they  expected  to  receive  or  enjoy  from  their  con- 
tracts ; 15  and  especially  do  courts  not  like  to  relieve 
those  parties  in  such  cases  who  have  committed  the 
principal  wrongs  themselves,  and  who  plead  their  own 
wrongs  for  the  purpose  of  being  so  relieved.16 

Want  of  moral  turpitude.  But  the  various  qualifica- 
tions of  the  general  rule  are  chiefly  applied,  by  way  of 
indulgence,  to  cases  where  the  transaction  involves  no 
moral  turpitude  on  the  part  of  the  party  seeking  a 
remedy,  but  is  a  violation  of  some  statute  against  which 
public  policy  pronounces  with  some  hesitation.17 
NEWMAKK  SALES.  —  46. 


§  362  ILLEGAL,   SALES.  542 

1  See  Story  on  Sales,  \  485. 

2  2  Schouler  on  Personal  Property,  \  617.    Illegal  sale  as  considera- 
tion for  note :  Bowen  v.  Webber,  28  N.  \V.  Rep.  (.Iowa)  600. 

3  See  Story  on  Sales,  §  486. 

4  2  Schouler  on  Personal  Property,  ?  617.    It  is  a  principle  apply- 
ing to  contracts  generally,  that  consent  cannot  receive  legal  effect 
so  as  to  confer  an  active  title  upon  one  of  the  persons  concerned,  if 
the  proposition  consented  to  by  him  is  either  directly  prohibited  by 
authority,  or  involves  conduct  subversive  of  good  morals  or  public 
policy:    Campbell    on    Sales,  145.    And  see    Greenhood  on  Public 
Policy,  p.  1.    The  maxim  i»  in  pari,  delicto  potior  est  conditio  defen- 
.dentis:  In  re  Maplebuck,  Ex  purte  Caldicott,  Law  R.  4  Ch.  D.  ISO. 
And  see  Bennett's  Benjamin,  §  504,  n.  c. 

5  See  Hill  v.  Spear,  50  N.  H  253  ;  9  Am.  Rep.  205. 

6  See  White  r.  Buss,  3  Cush.  448,  450 ;  2  Bouvier  Law  Diet.  tit. 
Mala  Prohibits  (14th  ed.),  91. 

7  2  Schouler  on  Personal  Property,  \  617     And  see  Story  on  Sales, 
§430;   Greenhood  on  Public  Policy,  p.  1;  citing,  Evans  v.  City  of 
Trenton,  24  N.  J.  L.  764,  771. 

8  White  v.  Buss,  3  Cush.  448.    Illegality  of  some  of  the  promises 
does  not  affect  consideration  of  whole  contract,  unless  it  be  indivisi- 
ble :  feee  Carleton  v.  Woods,  24  N.  H.  290  ;  Boyd  v.  Eaton,  44  Me.  51 ; 
McKnight  v.  Devlin,  52  N.  Y.  399  ;  Thurston  v.  Percival,  1  Pick.  415  ; 
Gelpkev.  Dubuque,  1  Wall.  321;  Hanauer  v.  Gray,  25  Ark   350;  Erie 
R.  R.  Co.  v.  Union  Express  Co.  35  N.  J.  L.  240;  Crookshank  v.  Rose,  5 
Car.  &  P.  19  ;  Hinde  v.  Gray,  1  Man.  &  G.  195 ;  Lange  v.  Work,  2  Ohio 
St.  519;  Pecker  r.  Kennison,  28  N    H.  290;  Waite  v.  Jones,!  Bir.g. 
N.  C.  656;   Filson  v.  Hines,  5  Pa.  St.  452;  Story  on  Sales,  §5C1;  2 
Schouler  on  Personal  Property,  g  618  ;  referring,  also,  to  Kottwitz  v 
Alexander,  34  Tex.  689;  Chandler  v.  Johnson,  39  Ga.  85;  Hanauer  v. 
Doane,  12  Wall.  342  ;  More  v.  Bonnet,  40  Cal.  2.",l ;  Ladd  v.  Dillingham, 
34  Me.  316.    And  consult  Campbell  on  Sales,  145, 146. 

9  White  v.  Buss,  3  Cush.  448,  450.    And  see  2  Corbin's  Benjamin  on 
Sales,  \  787,  n.  1 ;  Story  on  Sales,  \\  485-488  ;  2  Schouler  on  Personal 
Property,  §  G17  ;  citing,  Montefion  v.  Montefiori,  1  Black.  W    363 ; 
Caiiaan  v.  Bryse,  3  Barn.  &  Aid.  179  ;  Concord  v.  Delany,  58  Me.  309  ; 
Watrous  v.  Blair,  32  Iowa,  58  ;  Cameron  v.  Peck,  37  Conn.  555  ;  Myers 
v.  Meinrath,  101  Mass.  366 ;   Brackett   v.   Edgerton,  14  Minn.   174  ; 
Hanauer  v.  Doane,  12  Wall.  302;  Oscanyan  v.  Arms  Co.  103  U.  S.  261 ; 
8  Fed.  Dec.  205;  Sampson  v.  Shaw,  105  Mass.  149;  Horton  v.  Buffing- 
ton,  101  Mass.  400  ;  Peterson  v.  Christensen,  26  Minn.  377. 

10  See  §  364,  on  INSUFFICIENCY  OF  MERE  KNOWLEDGE. 

11  Distilling  Co.  r.  Nutt,  34  Kan.  724,  730,731;  10  Pacif.  Rep.  163. 
And  see  Fein  em  an  r.  Sachs,  3*]  Kan.  621 ;  52  Am.  Rep.  547.    Compare 
\  363,  on  KNOWLEDGE  OF  GUILTY  PURPOSE. 

12  See  g  365,  on  PARTICIPATION  AND  AIDING. 

13  Distilling  Co.  r.  Nutt,  34  Kan.  724,  731 ;  10  Pacif.  Rep.  163. 

14  See  \  366,  on  EXECUTORY  AND  EXECUTED  CONTRACTS. 

15  Distilling  Co.  v.  Nutt,  34  Kan.  724,  731 ;  10  Pacif.  Rep.  163. 

16  Distilling  Co.  v.  Nutt,  34  Kan.  724, 731  ;  10  Pacif.  Rep.  163.    Besides 
the  distinction  made  between  mere  knowledge  and  knowledge  with 
something  more,  there  is  also  a  well  recognized  distinction  between 
executed  and  executory  contracts ;  Distilling  Co.  v.  Nutt,  34  Kan. 
724,  731. 

17  2  Schouler  on  Personal  Property,  2  617.    See  \  363,  on  KNOWL- 
EDGE OF  GUILTY  PURPOSE. 


ILLEGAL  SALES.  \  363 

363.  Knowledge  of  guilty  purpose.  —  Want  of.  The 
seller  of  goods  may  recover  therefor,  if  he  had  no 
knowledge  whatever  of  the  buyer's  guilty  purpose,  or 
merely  reasonable  cause  to  believe  therein  ;  *  and  hence 
to  a  certain  extent,  a  transaction  may  be  illegal  on  one 
side  and  not  on  the  other,  because  of  the  different 
motives  of  the  respective  parties  to  the  sale,  the  one 
being  innocent  and  the  other  guilty.2 

Guilty  party  and  purpose.  So  the  guilty  party  and 
the  guilty  purpose  must  often  be  separated  ;3  for  while 
it  is  unlawful  for  one  to  let  premises  for  purposes  of 
prostitution,  or  sell  tools  for  the  purpose  of  house-break- 
ing, it  is  not  unlawful  to  furnish  a  person  with  neces- 
saries of  any  kind  because  she  happens  to  be  a  prostitute, 
or  to  make  an  innocent  contract  with  a  professional 
house-breaker.4 

Transactions  clearly  immoral.  But  it  is  said  that  the 
best  of  the  late  English  and  American  cases  utterly 
repudiate  the  qualification  in  favor  of  requiring  some- 
thing more  than  guilty  knowledge  on  a  seller's  part, 
save  as  applied  to  contemplated  acts  of  inferior  crimin- 
ality, and  completed  criminal  acts  which  the  party 
sanctions,  not  assists,  by  his  conduct.5  Upon  this  dis- 
tinction, whereby  those  sales  alone  are  upheld  in  which 
the  seller  may  possess  knowledge  of  the  buyer's  illegal 
purpose,  and  yet  sell  without  aiding  to  accomplish 
some  heinous  public  offense,6  are  founded  decisions 
which  render  the  seller's  guilty  knowledge  fatal  to  his 
rights,  where  he  sells  poison  knowing  that  the  buyer 
means  to  drug  another  with  it,7  or  supplies  goods  for 
sustaining  rebels  in  arms,8  or  vends  a  carriage  to  a 
prostitute  to  be  used  in  aid  of  her  vocation.9 

1  S^e  Kottwitz  v.  Alexander,  34  Tex.  680 ;  Prescott  v.  Norris,  32 
JT.  H.  101 ;  Buck  v.  Albee,  '26  Vt.  184  ;  Hotchkiss  v.  Finan,  105  Mass.  86. 

2  g  Schouler  on  Personal   Property,  a  617,  whence  paragraph 
derived. 


I  364  ILLEGAL  SALES.  544 

3  2  Schouler   on  Personal    Property,  §  617,  whence  paragraph 
derived. 

4  See  Story  on  Sales,  §  488  ;  Bowry  v.  Bennett,  1  Camp.  348.    But 
see  Pearce  v.  Brooks,  Law  B.  1  Ex.  212. 

5  2  Schouler  on  Personal  Property,  §  619. 

6  See  citations  in  succeeding  notes. 

7  Langton  v.  Hughes,  1  Maule  &  S.  593.    And  see  McFarlane  v. 
Taylor,  Law  R.  1  H.  L.  8.  245. 

8  Martin  v.  McMillan,  65  N.  C.  199;  Hanauer  v.  Doane,  12  Wall. 
342,  347.    And  see  McGavock  v.  Puryear,  6  Cold.  34. 

9  Pearce  v.  Brooks,  Law  R.  1  Ex.  212.    It  follows  that  the  bargain 
for  a  thing  i:i  itself  proper  may  become  void  from  regard  to  the  pur- 
pos-"*  for  which  it  is  to  be  applied,  and  one's  guilty  knowledge  of 
that  purpose  :  2  Schouler  on  Personal  Property,  \  6I<>,  whence  para- 
graph derived  ;  here  referring  to  Story  on  Sales,  §  506,  n. ;  Adams  v. 
Coulliard,  102  Mass.  167  ;  Sprott  v.  United  States,  20  Wall.  459. 


§  364,  Insufficiency  of  mere  knowledge.  —  In  general. 
The  mere  knowledge  by  the  one  party  of  the  other's 
guilty  purpose,  where  his  own  act  may  consistently  be 
innocent,  is  often  held  insufficient  to  deprive  him  of 
his  legal  remedies,  unless  it  further  appear  that  he 
meant  to  enable  the  buyer  to  do  the  illegal  act.1 

Of  unlawful  use  in  another  State.  Thus  mere  knowl- 
edge by  the  vendor  of  goods  lawfully  sold  in  one  State, 
that  the  vendee  intends  to  use  them  in  violation  of  law 
in  another  State,  will  not2  defeat  an  action  brought  in 
such  other  State  by  the  vendor  against  the  vendee  for 
the  purchase  price  of  the  goods.3 

Counter-views  discussed.  About  the  only  authorities 
which  are  seemingly  contrary  to  this  proposition 4  are 
said  not  to  furnish  much  opposition  to  the  general  doc- 
trine stated.5  Thus  the  Vermont  decisions  make  a 
distinction  between  mere  knowledge  by  the  vendor  of 
the  illegal  purpose  of  the  vendee,  and  knowledge  with 
the  intent  by  the  vendor  to  assist  in  carrying  out  such 
illegal  purpose  ;6  and  declare  it  to  be  a  recognized  rule, 
now  generally  adopted  both  in  this  country  and  in  Eng- 
land, that  mere  knowledge  by  the  vendor  of  goods,  sell- 
ing them  in  a  foreign  state,  that  the  vendee  intends  to 


45  ILLEGAL  SALES.  §   364 

use  them  in  violation  of  the  laws  of  another  State,  is  not 
sufficient  to  invalidate  the  contract,  when  sought  to  be 
enforced  in  the  courts  of  the  latter  State.7  So  the  later 
decisions  in  Massachusetts  do  not  purport  to  overrule 
the  previous  decisions  made  in  that  State,  but  attempt 
to  make  a  distinction,8  by  holding  that  it  is  not  knowl- 
edge alone  of  the  intended  illegal  sale  which  will  de- 
feat the  action,  but  it  is  knowledge  of  such  intended 
illegal  sale,  "  with  a  view"  that  the  intended  illegal 
sale  shall  be  consummated ;9  and  "reasonable  cause  of 
belief  "  of  such  intended  illegal  sale  is  not  sufficient.10 
And  though  the  decisions  in  Iowa  are  made  under  a 
special  statute,  yet  even  in  that  State  it  is  held  that 
mere  knowledge  of  the  law  alone  will  not  render  the 
contract  invalid,11  and  it  is  stated  that  it  is  not  held  that 
mere  knowledge  on  the  part  of  the  seller  of  the  in- 
tended violation  of  the  laws  by  the  purchaser  would 
necessarily  vitiate  or  avoid  the  contract.1'2  Further- 
more, in  a  Maine  case,  also  decided  under  an  express 
statute,  it  was  merely  held  that  knowledge  on  the  part 
of  the  vendor,  and  "acts  beyond  the  mere  sale,  which 
aided  the  purchaser  in  his  unlawful  design,''  would 
defeat  the  action.13 

1  See  Curtis  v-  Leavitt,  15  N.  Y.  9  ;  Bishop  v.  Honey,  34  Tex.  245 ; 
Armstrong1 1>.  Toler,  11  Wheat.  258 ;  Hodgson  v.  Temple,  5  Taunt.  181; 
Tuttle  v.  Holland,  43  Vt.  542  ;  Tracy  v.  Talmadge,  11  N".  Y.  1G2 ;  67 
Am.  Dec.  132 ;  Story  on  Sales,  §  506 ;  2  Schouler  on  Personal  Prop- 
erty, 9217;  citing,  also,  McGavock  v.  Puryear,  G  Cold.  34.    Consult 
further  succeeding  portions  of  section.    But  see  Hanauer  v.  Doane, 
12  Wall.  342. 

2  According  to  Distilling  Co.  v.  Nutt,  34  Kan.  724. 

3  Feineman  ?<.  Sachs,  31  Kan.  621,625, 626  ;  52  Am.  Kep.  547 ;  7  Pacif. 
Rep.  222,  and  following  cases  therein  cited ;  Hill  v.  Spear,  50  N.  H. 
253 ;  9  Am.  Rep.  205 ;  Holman  v.  Johnson.  1  Cowp.  341  ;  Gaylord  v. 
Soragen,  32  Vt.  110;  Mclntyre  v.  Parks,  3  Met.  207;  Smith  v.  God- 
frey, 28  N.  II.  379;  Orcutt  v.  Nelson,  1  Gray,  536;  President  etc.  v. 
Spaulding,  12  Barb.  302  ;  Tracy  v.  Talmage,  14  N.  Y.  Ifi2  ;  07  Am.  Dec. 
132.     And   see  Webber   v.  Donnelly,  33   Mich.   469;    McKinney  v. 
Andrews,  41  Tex.  363  ;  Dater  ?>  Earl,  3  Gray,  482  ;  Tegler  v.  Shipman, 
33  Iowa,  195;  Pellecat  v.  Angell,  2  Cromp.  M.  &  R.  311  ;  Sortwell  v. 
Hughes,  1  Curt.  244. 

4  Territt  ?».  Bartlett,  21  Vt.  184  ;  McConih^  ,1.  McMann,  ?.7  Vt.  95; 
Webster  v.  Muuger,  8  Gray,  584  ;  Adams  v.  Coulliard,  102  Mass.  167  ; 


?    365  ILLEGAL  SALES.  546 

Davis  v.  Bronson,  6  Iowa,  411  ;  Second  Nat.  Bank  v.  Cnrren,  36  Iowa, 
555 ;  Banchor  v.  Munsel,  47  Me.  58. 

5  Distilling  Co.  v.  Nutt,  34  Kan.  724  ;  10  Pacif.  Rep.  163. 

6  See  Territt  v    Bartlett,  21  Vt.  184,  189,  190 ;  McConihe  v.  Mc- 
Mann,27  Vt.  95,99. 

7  Gaylord  v.  Soragen,  32  Vt.  112. 

8  See  citations  in  succeeding  notes. 

9    r. ,  74  Mass.  584. 

10  Adams  v  Coulliard,  102  Mass.  167. 

11  Second  Nat.  Bank  v.  Curren,  3fi  Iowa,  555. 

12  Tegler  v.  Shipman,  33  Iowa,  1(15,  2CO. 

13  Banchor  i».  Munsel,  47  Me.  58  ;  Samuel  Bowman  Distilling  Co. 
v.  Nutt,  10  Pacif.  Rep.  163.    See,  also,  Torrey  v.  Corliss,  33  Me.  333. 

$  365.  Participation  and  aiding.  —  Parties  in  pari  de- 
licto.  Participating  in  a  guilty  purpose,  and  being  in 
pari  delictOj  must  put  the  party  altogether  outside  the 
law  as  to  the  guilty  transaction  : l  for  it  has  been  said 
that  no  man  shall  set  up  his  own  iniquity  as  a  defense 
any  more  than  as  a  cause  of  action  ; 2  and  with  regard 
to  the  illegal  contract,  the  law  will  leave  the  parties 
where  it  finds  them.3 

Aiding  vendee  in  unlawful  purpose.  Thus,  if  a  sale  of 
intoxicating  liquors  be  made  in  Massachusetts,  where 
the  sale  is  legal,  to  a  dealer  in  New  Hampshire,  for  the 
purpose  of  resale  there,  in  violation  of  the  law,  and  the 
vendor  agrees  to  aid,  and  does  actually  aid  the  vendee 
in  his  unlawful  purpose,  as  by  assisting  him  to  conceal 
the  contents  of  packages  containing  the  liquors,  such 
vendors  can  maintain  no  action  in  New  Hampshire  to 
recover  the  value  of  the  liquors.4  The  mere  knowl- 
edge of  the  unlawful  intent  of  the  vendee  by  the 
vendor  would  not  bar  him  from  enforcing  his  contract, 
and  recovering  in  the  courts  of  the  State  where  the  sale 
is  illegal;5  but  if  the  vendor  in  any  way  aids  the 
vendee  in  his  unlawful  design  to  violate  the  laws  of 
such  State,  such  participation  will  prevent  such  vendor 
from  maintaining  an  action.6 


547  ILLEGAL  SALES.  §   365 

Extent  of  participation.  Yet  the  participation  must 
be  active  to  some  extent,  and  the  vendor  must  do  some- 
thing in  furtherance  of  the  vendee's  design  to  violate 
the  laws  of  the  State  where  the  sale  is  illegal,  though 
positive  acts  in  aid  of  the  unlawful  purpose,  even  if 
slight,  are  sufficient.7  And  it  is  declared  that  a  con- 
tract of  sale  of  liquors  in  one  State  for  use  in  another, 
contrary  to  the  law  of  the  latter  State,  should  he  held 
void,  and  not  enforcible  if  the  liquors  were  packed 
by  the  seller  in  such  a  manner  as  to  conceal  the  con- 
tents of  the  package,  and  thus  enable  the  buyer  to 
accomplish  his  unlawful  purpose ;  or  if  the  illegal  dis- 
position of  the  goods  by  the  purchaser  in  any  way  en- 
tered into  the  contract,  and  a  greater  price  was  agreed 
to  be  paid  for  the  goods ;  or  if  the  seller  were  to  derive 
any  advantage  or  share  in  the  fruits  of  the  buyer's 
wrong.8 

Relief  for  parties  not  in  pari  delicto,  etc.  But  where, 
in  an  extreme  case,  the  parties  to  an  illegal  contract  are 
not  in  pan  delictof  the  party  who  has  been  oppressed, 
or  of  whose  situation  the  other  takes  undue  advantage, 
has  been  recognized  as  not  without  a  remedy  for  re- 
covering what  was  extorted  from  him.10 

1  2  Schouler   on  Personal   Property,  §  617,  whence  paragraph 
derived. 

2  Montefiori  v.  Montefiori,  1  Black.  W.  363. 

3  See  White  v.  Buss,  3  Cush.  448. 

4  Fisher  v.  Lord,  3  Atl.  Hep.  (N.  H.)  927.    And  see  Feineman  v. 
Sachs,  33  Kan.  621 ;  52  Am.  Rep.  547, 550. 

5  See  \  364,  on  INSUFFICIENCY  OF  MERE  KNOWLEDGE.    And  a 
sale  of  intoxicating-  liquors  in  Missouri  to  be  sold  in  Kansas  contrary 
to  the  laws  of  that  State  may  be  enforced  in  Kansas,  although  the 
seller  knew  the  illegal  purpose  of  the  buyer,  provided  he  did  not 
engage  actively  to  promote  or  share  in  it :  Feineman  v.  Sachs,  33 
Kan.  621 ;  52  Am.  Hep.  547. 

6  Fisher  v.  Lord,  3  Atl.  Hep.  (N.  H.)  927.    In  order  to  render  void 
the  sale  of  intoxicating  liquors  in  one  State   to  be  disposed  of  in 
another  contrary  to  its  laws,  and  defeat  a  recovery  of  the  price  of 
the  liquors,  there  must  be  some  participation  or  interest  of  the  seller 
in  the  act  itself :  Feineman  r.  Sachs,  32  Kan.  621 ;  citing,  Hill »».  Speer, 
50  N.  H.  253 ;  9  Am.  Bep.  205  ;  Holman  v.  Johnson,  Cowp.  348  ;  Gay- 


H  366-367  ILLEGAL  SALES.  548 

lord  v.  Soragen,  82  Vt.  110  ;  Aiken  v.  Blaisdell,  41  Vt.  656  ;  Mclntire  v. 
Parks,  3  Met.  207;  Smith  v.  Godfrey,  8  Fost.  379 ;  Orcutt  v.  Nelson,  67 
Mass.  5-T> ;  President  etc.  of  the  Merchants'  Bank  v.  Spnulding,  12 
Barb.  302 ;  Tracy  v.  Talmadge,  14  N.  Y  162  ;  67  Am.  Dec.  132. 

7  Fisher  v.  Lord,  3  Atl.  Kep.  (N.  H.)  927.    A  principal  cannot  reap 
the  benefits  of  an  illegal  transaction  which  a  third  party,  whom  he 
employed,  carried  out,  and  wherein  he  participates  by  knowingly 
sanctioning  the  sale :  2  Schouler  on  Personal  Property,  \  6-0 ;  citirg, 
Nicholson  r.  Gooch,  5  El.  &  B.  999  ;  Galligan  i\  Fonnan,  7  Allen,  2'5. 
And  in  whatever  capacity  one  unintentionally  furthers  the  viola- 
tion of  hi  w,  his  rights  in  the  illegal  transaction  are  excluded:  See 
Story  on  Sales,  \\  505,  506. 

8  Feineman  v.  Sachs,  23  Kan.  621 ;  32  Am.  Rep.  547,  550. 

9  See  Story  on  Sales,  §  496  a. 

10  2  Schouler  on  Personal  Property,  ?  617 ;  citing  Jacques  v. 
Go!ightlv,2  Black.  W.  1073;  Worcester  v.  riaton,  11  Mass.  3(58  ;  Con- 
rorrl  r.  Delaney,  58  Me.  309  ;  Butler  v.  Northumberland,  cO  N.  H.  r  • ; 
Whit»  ?'.  Franklin  Bank,  22  Pick.  231;  Tracy  v.  Talmage,  14  N.  Y. 
162  ;  G7  Am.  Dec.  132. 

\  330.  Executory  and  executed  contracts.  —  Disaffirm- 
ance  before  execution.  The  disaffirmance  of  the  con- 
tract in  its  initial  stage,  and  before  the  transaction  is 
completely  executed,  might  leave  a  party  in  favorable 
situation  for  resorting  to  the  courts  ; l  for  it  is  the  tenor 
of  late  decisions,2  that  money  or  goods  are  reclaimable 
where  the  unlawful  agreement  is  executory  only.3 

Complete  execution.  But  neither  law  nor  equity  will 
reopen  the  transaction  whenever  an  illegal  contract  of 
sale  has  been  carried  out  fully,4  all  acts  of  delivery 
completed,  and  the  price  paid.5 

1  Tracy  ?\  Talmage,  14  N.  Y.  162  ;  67  Am.  Dec.  132.    Comity  or  the 
conflict  of 'laws  is  sometimes  set  up  as  a  cause  of  indulgence  in  this 
connection  :  See  Hill  r.  Spear,  50 N.H.  253;  9  Am.  Rep.  205;  Castuque 
v.  Imrie,  Law  R.  4  H.  L.  414. 

2  According  to  2  Schouler  on  Personal  Property,  §  617,  whence 
paragraph  derived. 

3  Sf>e  Taylor  v.  Bowers,  Law  R.  1  Q.  B.  D.  291 ;  Spring  Co.  v. 
Know] ton,  103  U.  S.  49. 

4  See  Distilling  Co.  v.  Nutt,  34  Kan.  724, 731 ;  10  Pacif.  Rep.  163. 

5  2  Sohouler  on  Personal  Property,  §  6/8  ;  citing,  White  v.  Buss,  3 
Cush.  448  ;  Story  on  Sales,  §  488. 

g  367,  Sales  illegal  at  common  law.  —  Ingeneral.  There 
are  a  number  of  classes  of  sales  which  may  be  pro- 
nounced  illegal  at  common  law,  irrespective  of  legisla- 


549  ILLEGAL  SALES,  §   368 

tion,  although  the  offense  may  likewise  be  recognized 
in  statutory  enactments.1 

Immoral  objects.  Thus  whatever  contravenes  public 
decency  and  good  morals,  as  sales  for  purposes  of 
prostitution,2  and  sales  of  obscene  books  or  pictures,3 
must  be  pronounced  clearly  illegal  and  void.4 

Dangerous  things.  So  the  sale  of  poison,  or  of  murder- 
ous or  burglarious  implements,  is  illegal  when  in  aid  of 
felonious  designs  against  life  or  property.5 

Treasonable  and  smuggling  transactions.  And  among 
other  classes  of  sales  void  at  common  law,  though  con- 
cerning offenses  largely  regulated  by  statute,  are  sales 
to  a  public  enemy,6  or  in  aid  of  treason,7  as  well  as 
smuggling  contracts  of  sale,8  though  as  to  these  in 
particular,  the  English  law  has  ever  been  more  solicit- 
ous of  offenses  against  its  own  enactments  than  against 
those  of  other  countries.9 

1  2  Schouler  on  Personal  Property,  g  621.    Forestalling,  etc. :  See 
4  Blackst.  Com.  148. 

2  See  Pearce  v.  Brooks,  Law  K.  1  Ex.  213.    Compare  Bowry  v. 
Bennett,  1  Camp.  348.    And  consult  (Story  on  Sales,  ?  2  206,4>S8.    Knowl- 
edge of  purpose  ;  sale  equivalent  to  lease  of  bawdy-house :  Sprague 
v.  Rooney,  82  Mo.  493 ;  52  Am.  Rep.  383. 

3  See  Poplett  v.  Stockdale,  Ryan  &  M.  337 ;  Fohres  v.  Johnes,  4 
Esp.  407. 

4  2  Schouler  on  Personal  Property,  g  621.    And  see  Bennett's  Ben- 
jamin on  Sales,  g  504  ;  Campbell  on  Sales,  146  ;  Story  on  Sales,  g  433. 

5  See  Langton  v.  Hughes,  1  Maule  &  S.  593  ;  Roberts  ?>.  Egerton, 
Law  R.  9  Q.  B.  494 ;  as  cited  in  support  of  text  ia  2  Schouler  on 
Personal  Property,  §  621. 

6  See  Brandon  v.  Nesbitt,  6  Term  Rep.  23. 

7  See  Hanauer  v.  Doane,  12  Wall.  342 ;  Hanauer  v.  Woodruff,  15 
Wall.  439 ;  Sprott  v.  United  States,  20  Wall.  459. 

8  See  Pellecat  v.  Angell,  2  Cromp,  M.  &  R.  311;  Creekmore  v. 
Chitwood,  7  Bush,  317 ;  Story  on  Sales,  ft  507,  508. 

9  2  Schouler  on  Personal  Property,  ?  621.    And  see  Campbell  on 
Sales,  146;  Bennett's  Benjamin  on  Sales,  ??  510,  511  ;  citing,  Biggs  ?•. 
Lawrence,  3  Term  Rep  454  ;  Clugas  v.  Pentaluna,  4  Term  Rep.  466 ; 
Holman  v.  Johnson,  1  Cowp.  341 ;  Waymell  v.  Reed,  5  Term  Rep.  59^  ; 
Pellecat  v.  Angell,  2  Cromp.  M.  &  R.  311. 

g  368,  Violation  of  public  policy.  —  In  general.  Many 
classes  of  contracts  are  against  public  policy,  and  there- 


§    368  ILLEGAL,   SALES.  550 

fore  illegal,1  so  that  the  courts  will  neither  enforce  them 
while  executory,  nor  relieve  a  party  from  loss  by  part 
performance.2 

What  constitutes  public  policy.  And  though  public 
policy  is  a  variable  thing,3  which  is  in  its  nature  uncer- 
tain and  indefinite,  fluctuating  with  the  changes  of  habits 
and  opinions.with  the  growth  of  commerce,  and  with  the 
enlargement  of  international  intercourse,4  yet  it  is  said 
that  this  rule  may  be  safely  laid  down,  that  whatever 
contravenes  an  actual  rule  of  policy,  or  is  clearly  shown 
to  interfere  injuriously  with  the  true  interests  of  society, 
is  against  public  policy.5 

Combinations  concerning  commodities.  The  change 
which  takes  place  in  views  of  what  constitutes  public 
policy,  is  shown  by  the  fact  that  at  present  it  is  a  com- 
mon practice  to  form  combinations  concerning  the 
supply  of  commodities,  and  that  these  are  not  usually 
regarded  as  illegal,  except  where  they  amount  to  wag- 
ering contracts  ;6  while  the  common  law,  abhorring  all 
attempts  on  the  part  of  speculators  to  control  the 
market,  and  following  narrow  views  of  trade  formerly 
entertained,  pronounced  **  forestalling,  regrating,  and 
engrossing,"7  contrary  to  public  policy,  and  illegal.8 
Nor  do  the  classes  of  transactions  void  a.3  against  pub- 
lic policy  include  "gold"  sales  in  a  period  of  paper 
money  as  legal  tender,  or  stock  sales,  though  these  are 
sometimes  akin  to  gambling.9 

1  2  Schouler  on  Personal  Property,  §  621.    Illustrative  Instances  : 
agreement  to  construct    railroad   through  particular  place  (Balti- 
more etc.  R.  R.  Co.  v.  Ralston,  41  Ohio  St.  57-'>) ;  railroad  pooling  con- 
tract (Central  Trust  Co.  v.  Ohio  Cent.  R.  R.  Co.  2.J  Fed.  Rep.  306)  ; 
exclusive   telegraph  privilege:   West.  "Union  Tel.  Co.  v.  Bait.  etc. 
Tol.  Co.  23  Fed.  Rep.  12  ;  Bait.  etc.  Tel.  Co.  v.  West.  Union  Tel.  Co.  24 
Fed.  Rep.  319. 

2  Story  on  Sales,  \  489  ;  citing,  Foote  v.  Emerson,  10  Vt.  344. 

3  See  Richardson  v.  Mellish,  2  Bing.  242;  Hilton  v    Eckersley,  6 
"El.  &  B.  47;  Printing  etc.  Co.  v.  Sampson,!!)  Eq.  465;  Rousillon  ?'. 
Rousillon,  Law  R,  14  Ch,  D.  365  ;  Bennett's  Benjamin  on  Sales,  \\  512, 
513  a. 


551  ILLEGAL  SALES.  §   369 

4  Story  on  Sales,  ?  489. 

5  Story  on  Sales,  \\  4S9,  490.    And  see  2  Schouler  on  Personal 
Property,  \  6JI  ;  citing,  Richardson  v.  Mellish,  2  Bing.  242  ;  Crawford 
v.  Russell,  62  Barb.  92. 

6  See  i  360,  on  WAGERING  CONTRACTS. 

7  See  these  titles  in  Bouvier  Law  Diet. 

8  See  4  Blackst.  Com.  158 ;  Story  on  Sales,  \  490;  Bennett's  Ben- 
Jariiin  on  Sales,  §  514,  515;  Stats.  7,  8  Viet.  ch.  24  ;  2  Schouler  on  Per- 
sonal Property,  §  62. 

9  2   Schouler   on    Personal    Property,  ?  621  ;  citing,  Brown    v. 
Speyers,  20  Gratt.  296  ;  Appleman  v.  Fisher,  34  Md.  540. 

$  369.  Wagering  contracts.  —  Payment  of  differences. 
It  makes  no  difference  that  a  bet  or  a  wager  is  made  to 
assume  the  form  of  a  contract,  as  gambling  is  none  the 
less  such  because  it  is  carried  on  in  the  guise  of  legiti- 
mate trade.1  And  if  under  the  guise  of  such  a  contract, 
the  real  intent  be  merely  to  speculate  in  the  rise  or  fall 
of  prices,  and  the  goods  are  not  to  be  delivered,  but  one 
party  is  to  pay  to  the  other  the  difference  between  the 
contract  price  and  the  market  price  of  the  goods  at  the 
date  fixed  for  executing  the  contract,  then  the  whole 
transaction  constitutes  nothing  more  than  a  wager,  and 
is  non-actionable.2 

Illegal  intent.  But  in  order  to  affect  the  contract,  the 
alleged  illegal  intent  must  have  been  mutual,3  and  the 
intent  of  one  party  will  not  avail  if  not  communicated 
to  the  other,  or  concurred  in  by  such  other.*  So  the 
law  presumes  the  true  intention  of  parties  is  that  which 
is  expressed  upon  the  face  of  their  contracts,  and  also 
that  men  in  their  business  transactions  do  not  intend 
to  violate  the  law  or  to  make  contracts  for  the  enforce- 
ment of  which  the  law  refuses  a  remedy.5  Hence,  when 
one  party  charges  that  the  contract  is  infected  with  an 
illegal  intent,  the  burden  of  proof  is  imposed  upon  him 
to  establish  this  allegation.6 

Subsequent  settlements.  Furthermore,  the  validity  of 
the  contract  depends  upon  the  state  of  things  existing 


§   369  ILLEGAL  SALES.  552 

at  its  date,7  and  is  not  affected  by  subsequent  agreements 
under  which  the  parties  voluntarily  assent  to  a  settle- 
ment on  the  basis  of  differences  in  price.8  And  parties 
to  such  contracts  have  the  same  liberty  to  settle  their 
transactions  by  common  consent  according  to  their 
own  discretion,  which  is  accorded  to  parties  to  other 
contracts.9 

Future  delivery.  The  law  is  now  perfectly  settled 
that  an  executor}7'  contract  for  the  sale  of  goods  for 
future  delivery,  is  not  infected  with  the  quality  of  a 
wager  by  reason  of  the  fact  that  at  its  date  the  vendor 
had  not  the  goods,  and  had  not  entered  into  any  arrange- 
ment to  provide  them,  and  had  no  expectation  of  re- 
ceiving them  except  by  subsequently  going  into  the 
market  and  buy  ing  them  ; 10  and  the  contrary  doctrine  n 
has  been  distinctly  and  repeatedly  overruled.12  It  there- 
fore necessarily  follows  that  the  failure  to  identify  the 
particular  goods  sold  does  not  affect  the  matter,13  be- 
cause, from  the  very  nature  of  the  contract,  the  sale  is 
not  of  ascertained  goods,  but  of  articles  of  a  designated 
kind  and  quality  to  be  selected  hereafter.14  And  a  con- 
tract for  the  sale  of  goods  to  be  delivered  in  future  is 
not  of  itself  void,  though  the  vendor  neither  has  the 
goods  nor  has  provided  for  their  delivery,  when  by  the 
rules  of  the  exchange  in  which  the  transaction  is  made, 
it  is  provided  that  there  shall  not  be  a  settlement  of 
differences,  but  that  the  contract  shall  be  performed.15 

1  Conner   v.  Robertson,  37  La.  An.  814,  818 ;   55  Am.  Rep.  521, 
whence  succeeding  paragraphs  derived.    Stocks,  wagering  contracts, 
etc..    Budland  v.  Smith,  139  Mass.  492;   Earl  v.  Howell,  14  N.  C. 
474. 

2  See  Irwin  v.  Williar,  110  TJ.  S.  459,  508, 509. 

3  See  citations  in  next  note. 

4  See  Grizewood  v.  Blane,  11  Com.  B.  536  ;  Knight  v.  Cambers,  15 
Com.  B.  562  ;  Ashton  ?'.  Dukin,4  Hurl.  &  N.  867 ;  Kingsbury  v.  Kirwan 
77  N.  Y.  613 ;  Cassard  v.  Himman,  1  Bosw.  207 ;  0  Bosw.  8 ;  Smith  r. 
Bouvier   70  Pa.  St.  325 ;   Rumsey  v.  Berry,  65  Me.  570 ;   Sawyer  v. 
Taggart,  14  Bush,  720  ;  Williams  r.  Tiedeman.  6  Mo.  App.  269 ;  Pixley 
v.  Bovnton,  79  111.  351 ;  Clark  v.  Foss,  7  Biss.  540. 


553  ILLEGAL   SALES.  \   370 

5  Conner  r.  Robertson,  37  La.  An.  814, 818 ;  55  Am.  Rep.  521,  whence 
succeeding  paragraph  derived. 

6  See  Irwin  v.  Williar,  110  IT.  S.  499  ;  Frost  v.  Clarkson,  7  Cowen, 
24;  Dykers  r.  Tovvnsencl,  24  N.  Y,  57;  Plxley  v.  Boynton,79_  111.  3ol ; 
Williams  v.  Tiedeman,  6  Mo.  App.  269  ;  Rumsey  v.  Berry,  65  Me.  570. 

7  Conner  v.  Robertson,  37  La.  An.  814,  819. 

8  See  citations  in  next  note. 

X9    Clark  v.  Foss,  7  Biss.  540  ;  Williams  v.  Tiedeman,  6  Mo.  App.  263  ; 
Sawyer  v.  Taggart,  14  Bush,  729  ;  Fareira  v.  Gabell,  89  Pa.  St.  8H. 

10  Conner  v.  Robertson,  37  La.  An.  814, 819 ;  55  Am.  Rep.  521,  whence 
paragraph  derived. 

11  Announced  in  Lorymer  v.  Smith,  1  Barn.  <fe  C.  1;  Bryan  v. 
Lewis,  Russ.  &  M.  386. 

12  See  Hibblewhite  v.  McMorine,  5  Mees.  &  W.  462  ;  Mortimer  v. 
McCallan,  6  Mees.  &  W.  58 ;  Irwin  v.  Williar,  110  U.  S.  499,  and  nearly 
every  case  before  cited  in  section. 

13  See  citations  in  next  note. 


15  Conner  v.  Robertson,  37  La.  An.  814;  55  Am.  Rep.  521  ;  22  The 
Reporter,  112.  Future  delivery  of  wheat;  differences:  Whitsides  v. 
Cunt.  97  Ind.  191 ;  49  Am.  Rep.  441. 


Repo 
HUJ 

\  370.  Concerning  public  offices  and  officers.  —  Sales  of 
offices  or  their  emoluments.  On  general  grounds  of 
public  policy,  but  with  a  special  view  to  the  pure  ad- 
ministration of  civil  government,  the  sale  of  a  public 
office,  or  the  transfer  of  property  in  consideration  of 
procuring  a  public  office,  or  the  parceling  out  of  the 
profits  of  such  an  office  between  the  office-holder  and 
another,  is  void ; J  and  by  whatsoever  device  such  a 
consideration  is  embodied  in  a  sale  contract,  the  bar- 
gain must  fail  as  illegal.2 

Influencing  public  officers.  A  sale  is  also  illegal  whose 
moving  consideration  is  the  influencing  of  a  public 
officer,  or  of  one  dealing  with  such  officer  in  the  dis- 
charge of  his  duty ; 3  and  lobbying  contracts,  whether 
for  fixed  or  contingent  fees,  are  likewise  illegal,  as  tend- 
ing to  corrupt  legislation,  as  are  other  contracts  founded 
upon  the  consideration  of  influencing  public  officers  to 
perform  certain  official  acts,*  though  a  sufficient  basis 
NEWMAKK  SALES. —  47. 


§   371  ILLEGAL  SALES.  554 

for  a  legitimate  claim  for  compensation  might  be  found 
in  services  of  no  sinister  nature,  as  in  procuring  testi- 
mony, conducting  or  hearing,  or  making  an  argument 
in  furtherance  of  legislative  or  executive,  as  well  as 
judicial  procedure.5 

Affecting  elections.  All  sales  in  consideration  of  carry- 
ing or  influencing  public  elections  are  void.6 

1  See  citations  in  next  note. 

2  2  Schouler  on  Personal  Property,  ?  622 ;  citing,  Wells  v.  Foster, 
8  Mees.  <fc  W.  14'J  ;  Filson  v.  Himer,  5  Pa.  St.  452 ;  Hunter  v.  Nolf,  71 
Pa.  St.  282  ;  Gray  v.  Hook,  4  Comst.  44!) ;  Mayor  of  Dublin  r.  Hayes, 
10  I.  B.  C.  L.  226.    Consult  Story  on  Sales,  \  494  ;  Bennett's  Benjamin 
on  Sales,  gg  516-519 ;  Campbell  on  Sales,  146-150. 

3  S^e  Cook  v.  Shipman,  51  111.  316 ;  Richardson  v.  Crandall,  48 
K.  Y  848  ;  Weld  v.  Lancaster,  56  Me.  453. 

4  See  citations  in  next  note. 

5  See  Mills  v.  Mills,  40  X.  Y.  543  ;  Bowman  r.  Coffroth,  50  Pa.  St. 
10  ;  Trist  v.  Child,  21  Wall.  441 ;  2  Schouler  on  Personal  Property,  §  622, 
whence  paragraph  derived  ;  here  referring,  also,  to  Winpenny  v. 
French,  18  Ohio  St.  46!) ;  Sedgwick  v.  Stan  ton,  4  Kern.  289. 

6  See  Martin  v.  Wade,  37  Cal.  168 ;  Swayze  v.  Hull,  3  Halst.  54 ; 
Duke  r.  Asbee,  11  Ired.  112  ;  2  Schouler  on  Personal  Property,  \  262, 
so  citing  these  cases. 

g  371.  Concerning  litigation.  —  Champerty  and  main- 
tenance. With  especial  reference  to  the  purity  of  judi- 
cial administration,  and  the  sanctity  of  private  rights, 
the  courts  have  generally  repudiated  as  illegal  the  sale 
of  lawsuits,  mentioning  under  this  head  the  kindred 
offenses  of  champerty  and  maintenance.1 

Relaxation  of  common-law  rules.  But  the  ancient 
common-law  rules  against  one  party's  intermeddling 
with  another's  right  to  litigate 2  are  greatly  relaxed 
under  the  influence  of  equity  and  the  modern  practice 
acts.3 

1  2   Schouler    on    Personal    Property     §  262.     Illegal    contract 
between  attorneys,  following  up  bankrupt .   Redick  v.  Woolworth. 
17  Neb.  260;  52  Am    Rep.  410.    Champerty  and  maintenance:   Con- 
sult Bennett's  Benjamin  on  Sales,  \\  528,  529;  Campbell  on  Sales,  151 ; 
titles  named  in  Bouvier  Law  Diet.  ;  4  Blackst.  Com.  134 ;  Stanley  v. 
Jones,  7  Bing.  369  ;  Huttey  v.  Huttey.  Law  R  8  Q.  B.  112. 

2  See  1  Bouvier  Law.  Diet.  tit.  Champerty  (14th  ed ),  254. 


555  ILLEGAL  SALES.  §   372 

3  2  Schouler  on  Personal  Property,  §  262.  And  see  Sedgwick  v. 
Stanton,  4  Kern.  28!),  301  ;  Scott  v.  Harmon,  lOi)  Mass.  237.  Consult 
Fowler  v.  Callan,  7  N.  E.  Rep.  (X.  Y.)  169,  n.  171 ;  Courtwright  v. 
Burnes,  13  Fed.  Rep.  317>  n.  323-330,  fully  discussing  general  subject  of 
champerty. 

\  372.  Restraint  of  trade.  —  In  general.  No  contract 
of  sale  is  good  which  is  in  general  restraint  of  trade,  as 
this  is  in  derogation  of  private  rights,  and  tends  to 
monopoly,1  though  a  contract  is  valid  which  imposes 
upon  consideration  a  partial  restraint,  if  the  restraint 
be  kept  within  reasonable  bounds.2 

Restraint  in  time.  While  the  restraint  stipulated  for 
might  be  in  time  instead  of  space,3  yet  it  would  appear 
that  restraint  in  space  is  now  the  only  decisive  cause  of 
avoidance,4  since  partial  restraint  as  to  space  is  fre- 
quently upheld,  though  unlimited5  as  to  time.6 

Restraint  in  space*  A  restraint  is  generally  regarded 
as  void  because  general,  where  it  is  intended  to  operate 
through  the  realm,  as  in  Great  Britain,  or  through 
the  whole  State,  as  it  would  be  ruled  in  this  country  ;7 
but  it  has  been  considered  that  there  is  no  rule  laid 
down  as  to  the  invalidity  of  a  restraint  which  is  un- 
limited in  point  of  space,  but  that  the  sole  test  is 
the  reasonableness  or  unreasonableness  of  the  restraint 
at  issue.8  It  is  only  in  partial  restraint  of  trade,  and 
therefore  permissible  for  a  seller  to  stipulate  that  he 
will  not  carry  on  the  business  within  the  circuit  of  his 
usual  custom  as  then  definable,  or  of  a  particular 
municipality.9 

1  Vending  of  patent  rights  or  copyrights  does  not  contravene 
this  rule :  See  Leather  Cloth  Co.  v.  Lorsent,  Law  B.  3  Eq.  3-45 ;  Bry- 
Bon  v.  Whitehead,  3  Sim.  &  St.  74  ;  Morse  Twist  Co.  v.  Morse,  103 
Mass.  73. 

2  2  Schouler  on  Personal  Property,  2  623.    And  see  Story  on  Sales. 
#  492  ;  Campbell  on  Sales,  150.    It  is  said  that  contracts  in  restraint  of 
trade,  if  upon  a  sufficient  consideration,  are  good  as  to  particular 
localities  when  reasonable,  but  such  a  contract  without  limitation  us 
to  time  or  place  is  declared  to  have  never  been  sustained  either  in 
this  country  or  in  England :  Taylor  v.  Saurman,  1  All.  Hep.  (Pa.)  40 ; 
citing,  Keeler  v.  Taylor,  53  Pa.  St.  4f>7  ;  Gompera  v,  Rochester,  5G  Pa, 
St.  iid ;  Harkwsou's  Appeal,  73  Pa.  St.  1(J6. 


§   373  ILLEGAL  SALES.  556 

3  See  Ward  v.  Byrne,  5  Mees.  &  W.  548  ;  Bennett's  Benjamin  on 
Sales,  §  524. 

4  But  it  has  recently  been  said  that  an  agreement  not  to  engage 
in  the  same  business  at  any  time  is  void  and  unenforcible,  as  against 
public  policy,  since  the  law  will  not  allow  a  man  to  strip  himself  of 
the  means  of  livelihood :  Taylor  v.  Saurman,  1  Atl.  Hep.  (Pa.)  40. 

5  See  Story  on  Sales,  \  493. 

6  2  Schouler  on  Personal  Property,  £  623 ;  citing,  Bennett's  Benja- 
min on  Sales,  524  ;  Hitchcock  v.  Coker,  6  Ad.  &  E.  438  ;  Guerand  v. 
Bandelet,  32  Md.  561. 

7  See  Mallan  v.  May,  13  Mees.  &  W.  511  ;  Hinde  v  Gray,  1  Man.  & 
G.  195  ;  Taylor  v.  Blanchard,  13  Allen,  370 ;  Lange  v.  Werk,  2  Ohio  St. 
519  ;  More  v.  Bonnet,  40  Cal.  251. 

8  Leather  Cloth  Co.  v.  Lorsent,  Law  R.  9  Eq.  345 ;  Rousillon  v. 
Rousillon,  Law  R.  14  Ch.  D.  351.    Source  of  paragraph :  2  fechouler  on 
Personal  Property,  £  623. 

9  See  Guerand  v.  Bandelet,  32  Md.  561 ;  Warren  v.  Jones,  51  Me. 
146  ;  Jenkins  v.  Temples,  39  Ga.  655  ;  Whitney  v.  Slay  ton,  40  Me.  224  ; 
2  Schouler  on  Personal  Property,  §  G23,  so  citing  these  cases.    Agree- 
ment not  to  practice  dentistry  within  certain  limits  :    Bowers  v. 
Whittle,  63  1ST.  H.  147 ;  .56  Am.  Rep.  499.    Agreement  not  to  manu- 
facture or  sell  friction  matches  outside  of  one  State  or  Territory : 
Diamond   Match  Co.   r.  Roeber,  35  Hun,  421.     Engagement  not  to 
carry  on  s:ime  business:  for  five  years,  without  limitation  of  place 
(see  Wiley  ?>.  Baumgardner,  97  Ind.  60;  49  Am.  Rep.  42" ;  and  com- 
pare Johnson  ?•.  Gwinn,  100  Ind.  46fi);  within  city  and  vicinity :  Tim- 
merman  v.  Davis,  52  Mich.  34;   50  Am.  Rep.  240.     And  compare 
Paxson's  Appeal,  106  Pa.  St.  429. 

\  373,  Transfer  of  good-will.  —  Not  illegal.  A  sale  of 
one's  "good-will "  is  not  illegal,1  nor  even,  as  it  is  held, 
is  the  promise  to  influence  the  public  to  deal  with  the 
buyer  as  the  seller's  successor.2 

Engaging  in  same  business.  And  the  right  of  one 
who  has  sold  out  the  good-will  of  his  business  to  carry 
on  the  same  business  in  the  buyer's  immediate  vicinity 
is  a  matter  for  reasonable  interpretation,  according  to 
the  sense  of  the  parties,  with  the  qualification  that  the 
seller  should  not  be  allowed  to  overreach  the  buyer  in 
such  a  bargain.3 

Remedies.  A  breach  of  stipulations  in  an  agreement 
for  the  sale  of  a  business,  assuming  that  thev  amount 
to  a  parting  with  the  good-will  and  a  covenant  not  to 
engage  in  business  again,  is  no  ground  for  rescinding 
the  contract  and  suing  in  tort  for  deceit  in  making  it. 


557  ILLEGAL   SALES.  \   374 

but  the  remedy  is  by  action  for  damages  for  breach  of 
contract.4 

1  "Good-will"  discussed  :  14  Am.  Law  Beg.  N.  S.  1,  329,  649,  713  ; 
19  Cent.  L.  J.  362.    And  see  Barber  v.  Conn.  Mut.  Life  Ins.  Co.  15  Fed. 
Rep.  312,  n.  315 ;  Herefort  v.  Cramer,  7  Colo.  483 ;  15  The  Reporter, 
581,  582;   Wallingford  v.  Burr,  17  Neb.  137,  138,  139;  Bergamini  v. 
Bastian,  35  La.  An.  60 ;  48  Am.  Rep.  216,  n.  2:>3. 

2  See  Hoyt  v.  Holly,  39  Conn.  226 ;  Warfield  v.  Booth,  33  Md.  63  ; 
as  cited,  2  Schouler  on  Personal  Property,  \  623. 

3  See  Mouflet  v.  Cole,  Law  R.  7  Ex.  70 ;  Bradford  v.  Peckham,  9 
R.  I.  250 ;  Labouchere  v.  Dawson,  Law  R.  13  Eq.  322 ;  so  cited,  2 
Schoulcr  on    Personal    Property,  §623.    The    rule    precluding  the 
seller  of  a  good-will  from  soliciting  former  customers  does  not  extend 
to  compulsory  sales,  such  as  those  made  by  trustees  in  bankruptcy : 
Walker  v.  Mottram,  Law  R.  19  Ch.  D.  355. 

4  Taylor  v.  Saurman,  1  Atl.  Rep.  (Pa.)  40.    Evidence  of  damages 
by  impairment  of  good-will:  Burckhardt  v.  Burckhardt,  42  Ohio  St. 
474 ;  51  Am.  Rep.  842. 

§  374.  Violation  of  statutes.  — Various  instances.  Sales 
whose  illegality  depends  more  especially  upon  legisla- 
tion include  various  classes,  such  as  those  in  violation 
of  acts  against  lotteries,  acts  requiring  licenses,1  or 
otherwise  imposing  taxes,  acts  regulating  the  sale  of 
noxious  articles,  acts  enforcing  certain  requirements  as 
to  weight  and  measure,  inspection  acts,  and  the  like,2 
some  of  which  pursue  a  theory  of  morals  which  the 
common  law  did  not  clearly  sanction,  while  others  are 
rather  to  facilitate  the  operations  of  government.3 

Imposing  penalty,  etc.  The  courts  have  distinguished 
between  statutes  which  expressly  prohibit  the  trans- 
action, and  those  which  only  prohibit  it  by  implication, 
as  by  imposing  penalties  for  disobedience,  though  every 
such  question  must  be  tested  by  the  true  intent  of  the 
parties  to  render  the  contract  illegal  or  not ;  *  and  even 
the  imposition  of  a  penalty,  as  in  a  case  where  one  is 
required  to  take  out  a  license  on  the  basis  of  his  average 
sales,  may  sometimes  justify  an  inference  that  the 
party  general  business  should  bear  the  consequences 
of  non-compliance  with  the  legislative  enactment,  and 
not  particular  sales  with  individuals.5 


§  375  ILLEGAL  SALES.  558 

1  Illegal  sales  without  license:   Mandelbaum  v.  Gregovich,  17 
Kev.  87 ;  45  Am.  Hep.  433.    Sale  to  licensed.  Indian  trader  sustained : 
Dunn  v.  Carter,  30  Kan.  294. 

2  Unsurveyed  lumber :   Richmond  v.  Foss,  77  Me.  590,  591 ;  dis- 
tinguishing Abbott  v.  Goodwin,  37  Me.  203,  and  Rogers  v.  Humphreys, 
39  Me.  302.    Fertilizer  not  branded,  etc. :  Conley  v.  Sims,  71  Ga.  101. 
English  Food  and  Drugs  Act ;  misrepresentation  corrected  before 
sale :  Kirk  v.  Coats,  Law  R.  16  Q.  B.  D.  49.    Bread  in  carts  without 
weights  or  scales :  Riclgway  v.  Ward,  Law  R.  14  Q.  B.  D.  110.    And 
see  Daniel  v.  Whitfield,  Law  R.  15  Q.  B.  D.  408. 

3  2  Schouler  on  Personal  Property,  §  624.     And  see  generally, 
Story  on  Sales,  #  499  ;  Bennett's  Benjamin  on  Sales,  §  540  ;  Campbell 
on  Sales,  152, 153. 

4  See  Cope  v.  Rowlands,  2  Mees.  &  W.  149 ;  Forster  v.  Taylor,  5 
Barn.  &  Adol.  887 ;  Coombs  v.  Emery,  14  Me.  404  ;  Aiken  v.  Blaisdell, 
41  Vt.  655  ;  Miller  v.  Post,  1  Allen,  434  ;  Larned  v.  Andrews,  106  Mass. 
4-15;   Tracy  r.  Talmage,  14  N.   Y.  162;  67  Am.   Dec.  132;  Harris  v. 
Runnels,  12  How.  79;  1  Schouler  on  Personal  Property,  ?  2G5  ;  Story 
on  Sales,  §  498 ;  Bennett's  Benjamin  on  Sales,  §  530 ;  Campbell  on 
Sales,  152. 

5  See  Larned  v.  Andrews,  106  Mass.  435  ;  Aiken  v.  Blaisdell,  41  Vt. 
655.    So  cited,  2  Schouler  on  Personal  Property,  §  624,  whence  para- 
graph derived.    Usury  as  tainting  sale:  See  Schermerhorn  v.  Tal- 
man,  11  N.  Y.  93. 

\  375.  Sales  of  intoxicating  liquors. — In  general.  Prom- 
inent among  the  classes  of  sales  made  illegal  by  statute 
are  those  of  spirituous  and  intoxicating  liquors,1  con- 
cerning which  legislation  is  constantly  changing  in  the 
various  States,  so  that  the  numerous  decisions  possess 
little  more  than  local  importance.2 

Scope  of  legislation.  It  is  settled  that  these  statutes 
are  not  in  contravention  of  the  fundamental  law  of  the 
land  ;3  and  a  broad  issue  for  all  such  legislation  is,4  as 
to  whether  the  sale  of  liquor  shall  be  altogether  illegal, 
or  only  illegal  where  the  seller  has  taken  out  no 
license.5 

Conflict  of  State  laws.  Where  goods  which  have  been 
ordered,  such  as  intoxicating  liquors,  are  forwarded  by 
a  vendor  in  one  State,  where  then*  sale  is  lawful, 
through  a  common  carrier,  with  instructions  to  collect 
the  price  thereof  from  the  vendee  in  another  State, 
where  their  sale  is  illegal,  and  the  carrier  is  not  to  de- 
liver the  goods  without  receiving  the  price,  the  sale  is 


559  ILLEGAL  SALES.  \  376 

not  complete  until  the  condition  precedent  of  the  pay- 
ment of  the  price  is  fulfilled,6  and  hence  the  vendor 
becomes  subject  to  any  penalties  prescribed  by  law  in 
the  second  State  for  such  illegal  sale.7  So  where  intox- 
icating liquors  are  sold  in  a  State  under  whose  laws 
the  sale  is  illegal  and  void,  and  such  sale  is  made  for 
the  purpose  of  enabling  the  buyer  to  violate  the  law 
of  the  State,  an  action  brought  in  another  State  against 
the  acceptor  of  a  note  given  for  the  price  of  the  liquor 
cannot  be  sustained ; 8  and  this  is  the  case,  although  the 
sale  was  made  by  an  agent  of  the  payee  of  the  note, 
without  the  knowledge  of  the  principal.9 

1  Sale  of  liquors  without  license  :    United  States  ?>.  dine,  26  Fed. 
Bep.  515.    Place  of  sale  :  Garbracht  v.  Commonwealth,  96  Pa.  St.  449; 
42  Am.  Bep.  5oO.    Knowledge  of  unlawful  purpose :  Feineman  v. 
Sachs,  33  Kan.  621 ;  52  Am.  Bep.  547.    And  see  Distilling  Co.  v.  Nutt, 
64  Kail.  724  ;  10  Pac.  Bep.  163. 

2  2  Schouler  on  Personal  Property,  §  625. 

3  Bartemeyer  v.  Iowa,  18  Wall.  129. 

4  According  to  2  Schouler  on  Personal  Property,  \  625,  whence 
paragraph  derived. 

5  See  Butter  v.  Northumberland,  50  N.  H.  33 ;  Yaeger  Milling  Co. 
v.  Brown,  128  Mass.  171;  Jameson  v.  Gregory,  4  Met.  (Ky.)  3GS  ;  Dol- 
son  v.  Hope,  7  Kan.  161.    English  Tippeng  Acts :  See  Bennett's  Ben- 
jamin on  Sales,  \\  543,  544. 

6  State  v.  O'Neil,  58  Vt.  140 ;  56  Am.  Rep.  557.    And  see  TJ.  S.  v. 
Shriver,  23  Fed.  Bep.  134  ;  31  Alb.  L.  J.  163. 

7  State  v.  O'Neil,  58  Vt.  140  ;  2  Atl.  Bep.  486  ;  22  The  Beporter,  58. 

8  Weil  v.  Golden,  6  N.  E.  Bep.  (Mass.)  229. 

9  Weil  v.  Golden,  6  N.  E.  Bep.  (Mass.)  229. 

§  376.  Sunday  sales.  —  At  common  law  and^in  Eng- 
land. At  common  law,  sales  on  Sunday  seem  not  to 
have  been  void,  but  under  English  statutes  for  the  past 
two  centuries  or  more,  the  prohibition  against  Sunday 
trading  has  remained  in  force  to  this  day.1 

In  United  States.  Similar  enactments,  more  or  less 
comprehensive  in  scope,  are  to  be  found  in  nearly  all 
of  the  United  States,  usually  making  works  of  necessity 
and  charity 2  the  basis  of  an  excepting  proviso.3 


§   376  ILLEGAL  SALES.  560 

Liberal  construction  of  enactments.  But  the  disposition 
is  frequently  shown  at  the  present  day,  to  mitigate  the 
severity  of  such  legislation  by  liberally  construing  the 
Sunday  laws;4  and  a  sale  void  under  such  an  enact- 
ment would  appear  good  wherever  a  fresh  promise 
passes  between  the  parties  on  a  subsequent  day,  or  the 
execution  of  the  bargain5  made  on  Sunday  occurs  on 
some  other  day  of  the  week,6  while  the  bargain  may 
hold  in  favor  of  an  innocent  party,  as  where  the  exe- 
cution of  the  contract  by  the  one  in  violation  of  the 
Sunday  law  was  unknown  to  the  other.7 

1  2  Schouler  on  Personal  Property,  ?  625.    And  see  Bennett's  Ben- 
jamin on  Sales,  \\  552-004  ;  Campbell  on  Sales,  155,  156,  and  cases 
reviewed  ;  Drnry  v.  Defontaine,  1  Taunt.  131 ;  Bloxsome  v.  Williams, 
6  Barn.  &  C.  232. 

2  Sunday  subscription  for  work  of  charity  held  not  void  :  Allen 
v.  Duffie,  43  Mich.  1.    And  see  Dale  v.  Knapp,  98  Pa.  St.  389.    But 
compare  contra,  Catlin  v.  Trustees  etc.  62  Ind.  365. 

3  See  Lyon  v.  Strong,  6  Vt.  219 ;  Smith  v.  Bean,  15  N.  H.  577 ; 
Cransen  v.  Goss,  107  Mass.  439  ;  Allen  v.  Gardiner,  7  R.  1. 22  ;  Northrup 
v.  Foote,  14  Wend.  248;  Murphy  v.  Simpson,  14  Mon.  B.  419;  Pate  v. 
Wright,  30  Ind.  476  ;  Mueller  v.  State,  76  Ind.  310  ;  Sayre  v.  Wheeler, 
32  Iowa,  '-.-)') ;  Finley  v.  Quirk,  9  Minn.  194 ;  86  Am.  Dec.  93 ;  Story  on 
Sales,  \\  500-502. 

4  2  Schouler  on  Personal  Property,  g  625,  whence  preceding  para- 
graph also  derived, 

5  Where  a  Sunday  contract  Is  fully  executed,  the  law  leaves  the 


parties  where  it  finds  them :  Meyers  v.  Meinrath,  101  Mass.  336 ; 
Green  v.  Godfrey,  44  Me.  25;  Thompson  v.  Williams,  58  N.  H.  248. 
Compare,  as  to  replevin,  Kinney  v.  McDermott,  55  Iowa,  674. 

6  The  contract  is  not  illegal  where  the  price  is  agreed  upon  on 
Sundaj',  but  delivery  was  not  to  take  place  till  the  next  day  :  Rosen- 
blatt  v.  Tounsley,  73~Mo.  536. 

7  2  Schouler   on   Personal   Property,  ?  625 ;  citing,  Simpson  v. 
Kicholls,  5  Mees.  &  W.  702  ;  Harrison  v.  Colton,  31  Iowa,  16;  Dickin- 
son ?-.  Richmond,  97  Mass.  45  ;  Sumner  v.  Jones,  24  Vt.  817  ;  Cameron 
r.  Peck,  37  Conn.  555;  Winchell  v.  Carey,  115  Mass.  560;  Snyles  v. 
Wellman,  10  R.  I.  4G5  ;  Viuton  v.  Peck,  14  Mich.  287  ;  Story  on  Sales, 
\\  500-502. 


561  MISTAKE.  §  377 


CHAPTER   XXXII. 

MISTAKE. 

§  377.  Concerning  terms  of  contract. 

2  378.  Touching  essence  of  contract. 

§  379.  As  to  subject-matter. 

I  380.  Concerning  identity  of  article. 

\  381.  Concerning  price. 

\  382.  Concerning  quantity. 

§  383.  Concerning  quality. 

g  384.  Concerning  person. 

\  385.  Remedies  of  parties. 

g  377.  Concerning  terms  of  contract. — No  meeting  of 
minds.  When  the  minds  of  the  parties  to  a  contract  do 
not  meet  upon  the  whole  and  exact  terms  of  such  con- 
tract, the  same  is  void.1  Hence,  where  there  is  a  mutual 
mistake  as  to  the  price  of  an  article,  there  is  no  sale, 
and  neither  party  is  bound.2 

Different  ships  meant.  And  to  an  action  for  not  ac- 
cepting cotton'4  to  arrive  ex  Peerless  from  Bombay," 
it  is  a  good  defense  that  the  buyer  meant  a  ship  called 
the  Peerless,  which  sailed  from  Bombay  in  October, 
and  that  the  seller  was  not  ready  to  deliver  any  cotton 
which  arrived  by  that  ship,  but  only  cotton  which  ar- 
rived by  another  ship  called  the  Peerless,  which  sailed 
from  Bombay  in  December.3 

Part  delivery.  So  whatever  is  done  between  the 
parties,  under  a  supposed  agreement  of  sale,  when 
there  is  a  mutual  misunderstanding  as  to  its  terms,  is 
not  binding ; 4  and  though  both  parties  consent  at  the 
time  to  the  delivery  of  a  portion  of  the  property  agreed 
to  be  sold,  each  supposing  that  such  delivery  is  to  be  a 
part  performance  of  the  conditional  contract  of  sale,  the 
law  will  not  imply  that  either  of  the  parties  intended 


§   378  MISTAKE.  562 

that  the  property  was  to  be  absolutely  the  purchaser's 
in  case  he  failed  to  comply  with  the  whole  agreement.5 
Mistake  of  one  party.  But  a  mistake  of  one  party 
cannot  be  set  up  by  him  as  a  ground  for  rescinding  a 
sale  or  other  contract,6  or  for  resisting  its  enforcement, 
when  his  manifested  intention  misleads  the  other 
party,7  except  where  advantage  is  taken  of  an  obvious 
blunder.8 

1  Fullerton  v.  Dalton,  58  Barb.  236,  239.     And  see  Ketchum  v. 
Cntl1n,2l  Vt.  101,  ISH;  Greene  v.  Bateman,  2  Wood.  &  M.  359,  361  ; 
Cutts  v.  Guild,  57  N.  Y.  229,  234. 

2  Rupley  t».  Daggett,  74  III,  851,  853.    And  see  Harran  v.  Foley,  62 
Wis.  5*4,  588  ;  Rovegnov.  Defferuri,  40  Gal.  459,  462  ;  $  381,  oil  MISTAKE 

PBJCE. 


3  Raffles  r.  Wichelhaus,  2  Hurl.  <fc  C.  906, 

4  Fullerton  v.  Dalton,  68  Barb.  237,  239. 

5  Fullerton  v.  Dalton,  58  Barb.  237,  239. 

6  See  Harran  v.  Foley,  62  Wis.  584,  588. 

7  See  Philip  v.  Gallant,  62  N.  Y.  256,  268  •  Zuchtman  v.  Roberts, 
109  Mass.  53,  t>5;  Thomas  v.  Brown,  Law  R.  7  Q.  B.  D.  714,  722. 

8  Harran  v,  Foley,  62  Wis.  584,  586.    And  see  Stoddard  v.  Ham, 
129  Mass.  383,  385  ;  37  Am.  Rep.  369  ;  Webster  v.  Cecil,  30  Beav.  6J  ; 
Tamplin  v.  Jarues,  Law  R.  15  Ch.  D.  221. 

§  378.  Touching  essence  of  contract.  False  representa* 
tion.  If  a  purchaser  buys  on  the  faith  of  a  false  rep- 
resentation by  the  seller,  touching  the  essence  of  the 
contract,  the  sale  will  be  set  aside  in  equity,1  whether  the 
misrepresentation  was  the  result  of  fraud  or  of  mistake.3 

Substantial  failure  of  consideration.  But  an  innocent 
misrepresentation  or  misapprehension  does  not  author- 
ize a  rescission  of  the  contract,  unless  it  is  such  as  to 
show  that  there  is  a  complete  difference  in  substance 
between  the  thing  supposed  to  be  taken  and  that  actu- 
ally taken,  so  as  to  constitute  a  failure  of  consideration.3 

Matter  merely  collateral.  And  though  a  mutual  mis- 
take of  the  parties  as  to  the  subject-matter  of  the  con- 
tract, or  the  price  or  terms,  may  be  interposed  as  a 
defense,4  it  is  otherwise  where  the  mistake  is  in  relation 


563  MISTAKE.  §  379 

to  a  fact  wholly  collateral,  and  not  affecting  the  essence 
of  the  contract  itself.5 

1  Doggett  v.  Emerson,  3  Story,  700, 733. 

2  Doggett  v.  Emerson,  3  Story,  700,  733.    And  see  Torrance  v. 
Bolton,  Law  R.  8  (Jh.  App.  118, 123  ;  Jnzan  v.  Toulmin,  9  Ala.  662  ;  44 
Am.  Dec.  449, 453 ;  Miles  v.  Stevens,  3  Pa.  St.  21 ;  45  Am.  Dec.  621, 624. 

3  Kennedy  v.  Panama  Mail  Co.  Law  R.  2  Q,  B.  580,  587.    Failure 
of  consideration :  §§  386-390. 

4  See  §§  379-382,  on  SUBJECT-MATTER,  IDENTITY  OF  ARTICLE, 
PRICK,  etc. 

5  Wheat  v.  Cross,  31  Md.  99, 104  ;  1  Am.  Rep.  28,  30. 

I  379,  As  to  subject-matter.  —  As  avoiding  contract. 
A  contract  which  is  made  while  the  parties  are  under  a 
mutual  mistake  as  to  material  facts  affecting  the  sub- 
ject-matter is  invalid,1  and  may  be  avoided  in  a  court 
of  law  as  well  as  in  equity.2 

Identity  or  existence  of  thing  sold.  Thus,  where  in 
a  negotiation  for  the  sale  of  property,  the  seller  has 
reference  to  one  article  and  the  buyer  to  another,3  or 
where  the  parties  supposed  the  property  to  be  in  exist- 
ence, when  in  fact  it  had  been  destroyed,4  the  contract 
is  ineffectual  because  the  parties  did  not  in  fact  agree 
as  to  the  subject-matter,  or  because  it  had  no  existence.3 

Situation  of  property.  And  when  it  is  discovered 
that  the  parties,  in  making  a  contract  of  sale,  had  pro- 
ceeded upon  a  mutual  mistake  as  to  the  situation,  the 
contract  is  invalid,  the  parties  may  be  remitted  to  their 
original  rights,  and  any  portion  of  the  price  paid  may 
be  recovered  back  by  the  purchaser.6 

Buyer's  ability  to  pay.  But  when  the  mistake  does 
not  concern  the  article  sold,  or  the  identity  of  the  per- 
son purchasing,  but  the  ability  of  the  purchaser  to  pay 
for  the  goods,  such  mistake  will  invalidate  the  contract 
of  sale  and  furnish  ground  for  relief  in  equity.7 

Quality.  And  a  mere  mistake  as  to  the  quality  of 
specified  goods  will  not  invalidate  the  contract  of  sale.8 


?   380  MISTAKE.  564 

1  Ketchum  v.  Catlin,  21  Vt.  191, 194. 

2  Ketchum  v.  Catlin,  21  Vt.  191, 194.    And  see  Flight  v.  Booth,  1 
Bing.  X.  C.  370  ;  Mowatt  v.  Wright,  1  Wend.  355,  362  ;  19  Am.  Dec.  508. 

3  See  Harvey  v.  Harris,  112  Mass.  32,  37. 

4  See  Thompson  v.  Gould,  20  Pick.  134, 139. 

5  Gardner  v.  Lane,  9  Allen,  492,  499;  85  Am.  Dec.  779.    And  see 
Kice  v.  Dwight  Manuf.  Co.  2  Cush.  80, 8fi  ;  Ketchum  v.  Bank  of  Com- 
merce, 19  N.  Y.  499,  502 ;  Allen  v.  Hammond,  11  Peters,  63, 71, 72. 

6  Ketchum  v.  Catlin,  21  Vt.  191, 195.    And  see  Mowatt  v.  Wright, 
1  Wend.  355  ;  19  Am.  Dec.  508. 

7  Lupin  v.  Marie,  6  Wend.  77 ;  21  Am.  Dec.  256, 258. 

8  Wheat  v.  Cross,  31  Md.  99, 104 ;  1  Am.  Bep.  28, 30 ;  Gardner  v. 
Lane,  9  Allen,  492,  500 ;  85  Am.  Dec.  779.    See  §  383. 

§  380.  Concerning  identity  of  article.  —  Reference  to 
different  articles.  If  there  is  a  mistake  as  to  the  identity 
of  the  article  sold,  and  not  merely  as  to  its  quality,  such 
as  occurs  where  the  seller  and  buyer  have  reference 
to  different  articles,1  the  contract  which  the  parties 
intended  to  make  fails  of  effect,  and  the  title  does  not 
pass,  because  the  parties  did  not  in  fact  agree  as  to  the 
subject-matter.2 

Misplacement  of  damaged  flour.  Thus,  where  the 
highest  bidder  for  the  second-class  flour  at  a  sale  of 
flour,  part  disposed  of  as  slightly  damaged  and  part  as 
considerably  damaged,  selected  as  the  flour  he  would 
take  two  rows  of  flour  of  the  first  class,  which  had  been 
accidently  misplaced  without  the  knowledge  of  the 
owner  or  auctioneer,  the  same  being  outside  the  auction- 
room,  it  was  held  that  the  minds  of  the  parties  had  not 
met  so  as  to  make  a  sale.3 

Contents  of  receptacle.  And  where  a  party  purchased 
at  an  administrator's  sale  a  drill  machine,  which 
unknown  to  all  parties,  contained  money  and  other 
valuables  secreted  there  by  the  decedent,  it  was  held 
that  the  sale  passed  to  the  purchaser  the  right  to  the 
machine,  and  to  every  constituent  part  of  it,  but  not  to 
the  valuables  contained  in  it.4  So  the  purchaser  of  a 
safe  at  an  execution  sale  acquires  no  title  to  its  contents.5 


ffrr 

565  MISTAKE.  If  U  JN  X  I  381 

\&A 

1  See  citations  in  next  note.  ^^^"^^  Y  ^ 

2  Harvey  v.  Harris,  112  Mass.  32,  37.    And  eee  Gardner  ??.  Lane,  9 
Allen,  4J2,  499;  85  Am.  Dec.  779 ;  Bice  v.  Dwiglit  Manuf.  Co.  2  Cuah. 
80,  86 ;  Chapman  v.  Cole,  12  Gray,  141, 142  ;  Sheldon  r.  Capron,  3  11.  I. 
171 ;  Thornton  v.  Kempster,  5  Taunt.  786,  788 ;  Fullerton  v.  Dulton,  58 
Barb.  236. 

v       3    Harvey  v.  Harris,  112  Mass.  32.     Compare  Hills  v.  Snell,  104 
Mass.  173  ;  Fear  v.  Jones,  6  Iowa,  169, 173. 

4  Hutmacher  v.  Harris,  38  Pa.  St.  401,  498,  499.    Such  valuables  on 
discovery  were  declared  to  be  held  as  treasure-trove  for  the  repre- 
sentatives of  the  deceased  owner :  Hutmacher  v.  Harris,  38  Pa.  St. 
491,  498,  499. 

5  Bay  v.  Light,  34  Ark.  421,  427.     But  it  is  his  duty  to  preserve 
them  and  restore  them  to  the  owner  when  called  for  :  Bay  v.  Light, 
34  Ark.  421,  427. 

g  381.  Concerning  price.  —  Effect  of  mistake  concerning. 
It  is  an  elementary  principle  that  where  there  is  a 
mutual  mistake  as  to  the  price  of  an  article,1  there  is  no 
sale,  and  neither  party  is  bound,2  since  there  has  been 
no  meeting  of  the  minds  of  the  contracting  parties.3 

Vendor's  subsequent  sale.  And  where  there  is  a 
mutual  misunderstanding  between  the  parties,  as  to 
the  amount  of  the  consideration  to  be  paid  on  a  sup- 
posed contract  of  sale,  of  an  interest  in  a  copartnership, 
a  subsequent  sale  by  the  apparent  vendor  to  a  third 
party  is  valid.4 

Snapping  up  offer.  So  if  personal  property  is  by 
mistake,  as  through  a  slip  of  the  tongue,  offered  for 
sale  at  a  lower  price  than  was  intended,  and  the  offer  is 
accepted  by  one  who  knows  or  has  reason  to  believe 
that  it  was  a  mistake,  there  is  no  sale  which  is  binding 
upon  the  vendor.5 

1  Mistake  concerning  price :  See,  also,  Wilkinson  v.  Williamson, 
76  Ala.  163,  168. 

2  See  citations  in  next  note. 

3  Bupley  v.  Daggett,  74  Ell.  351,  353.    And  see  Bovegno  v.  Deffe- 
rari,  40  Cal.  459,  462 ;  Greene  v.  Bateman,  2  Wood.  &  M.  359,  361 ;  Calk- 
Ins  v.  Griswold,  11  Hun,  208,  212,  213 ;  Harran  v.  Foley,  62  Wis.  548  ;  22 
N.  W.  Bep.  837  ;  Phillips  v.  Bistolli,  2  Barn.  &  C.  511.    Compare  Star 
Glass  Co.  v.  Longley,  64  Ga.  576,  578  ;  Fear  v.  Jones,  6  Iowa,  169, 170. 

4  Bovegno  v.  Defferari,  40  Cal.  459,  462. 

5  Harran  v.  Foley,  62  Wis.  584  ;  22  N.  W.  Bep.  837.    And  see  Web- 
ster v.  Cecil,  30  Beav.  62  ;  Tampliu  v.  James,  Law  B.  15  Ch.  D.  221. 

NEWMARK  SALES.  — 48. 


g?  382-383  MISTAKE.  566 

I  382.  Concerning  quantity.  —  Recovery  of  excess  of 
price  paid.  In  sales  of  goods,  a  mutual  mistake  on 
such  a  material  point1  as  the  quantity  of  goods  sold, 
will  entitle  the  buyer  to  recover  back  any  excess  of 
price  which  he  may  have  paid  under  the  misap- 
prehension.2 

Setting  off  amount  of  shortage.  And  a  person  buying 
milk,  who  pays  for  the  same,  counting  each  can  as  con- 
taining eight  gallons,  and  supposing  the  cans  to  hold 
that  much,  when  in  fact  they  do  not,  may  set  off  the 
money  paid  by  him  for  the  shortage  out  of  any  sum  he 
may  owe  the  seller,  in  a  suit  for  the  price.3 

Duties  not  recoverable.  But  though  the  vendor  may 
recover  the  excess  paid  by  him  where  there  has  been  a 
mutual  mistake  as  to  the  mode  of  measurement,  and 
the  quantity  delivered  was  supposed  to  be  greater  than 
it  really  was,4  or  may  compel  the  seller  to  make  good 
the  defieienc3r,  he  cannot  recover  remote  damages  re- 
sulting from  the  deficiency,  such  as  excessive  duties  on 
the  chattels,  paid  while  laboring  under  the  mistake.5 

1  See  g  378,  on  MISTAKE  TOUCHING  ESSKXCE  OF  CONTKACT. 

2  Scott  v.  Warner,  2  Lans.  49.    And  see  "Wheadon  v.  Olds,  20  Wend. 
174  ;  Cox  ?'.  Prentice,  3  Maule  <fe  S.  344  ;  Caulkins  v.  Griswold,  11  Hun, 
208,  211,  213  ;  Armstrong  Furniture  Co.  t».  Kosure,  65  Ind.  545,  546.    But 
compare  Newlan  v.  Dunham,  60  111.  233,  235.    Excessive  delivery  : 
Bours  v.  Watson,  I  Mill.  Const.  393  ;  Smith  v.  Mayo,  1  Allen,  160.    And 
see  Goodman  v.  Wells,  49  Ala.  309. 

3  Devine  v.  Edwards,  101  111.  130, 140. 

4  See  citations  in  first  subdivision  of  section. 

5  Hargous  v.  Ablon,  3  Denio,  406  ;  45  Am.  Dec.  481,  483.    And  see 
Blanchard  v.  Ely,  21  Wend.  342,  347 ;  34  Am.  Dec.  250,  254  ;  Voorhies  v. 
Earl,  2  Hill,  288  ;  38  Am.  Dec.  588,  589. 

$  383.  Mistake  concerning  quality.  —  Wot  ground  of 
avoidance  by  buyer.  It  is  where  there  is  a  mutual  mis- 
take as  to  identity  of  the  thing  sold,  or  as  to  price  and 
terms,  etc.,  that  the  defense  of  mistake  is  allowed.1  And 
a  buyer  cannot  avoid  a  contract  on  the  ground  of  mis- 
take of  fact,  by  showing  that  he  was  mistaken  as  to  the 


567  MISTAKE.  g   384 

quality  of  the  thing  sold  ; 2  but  in  the  absence  of  a  war- 
ranty, the  rule  of  caveat  emptor  applies  to  mistakes  of 
this  kind.3 

No  repudiation  by  seller  of  ascertained  articles.  So  a 
mutual  mistake  or  misapprehension  as  to  the  quality  of 
particular  articles,  whose  kind  or  description  has  been 
ascertained,  will  not  enable  the  vendor  to  repudiate  the 
sale.4 

1  Wheat  v.  Cross,  31  Md.  99,  104  ;  1  Am.  Rep,  28,  30.    And  see 
Fullerton  v.  Dal  ton,  58  Barb.  236,239;  Ketchum  v.  Catlin.  21  Vt.  191, 
194. 

2  Wheat  v.  Cross,  31  Md.  99, 104  ;  1  Am.  Rep.  28,  30.    But  compare 
Gardner  v.  Lane,  9  Allen,  492,  500. 

3  Wheat  v.  Cross,  31  Md.  99, 104  ;  1  Am.  Rep.  28,  30. 

4  See  Harvey  v.  Harris,  112  Mass.  32, 37  ;  Gardner  v.  Lane,  9  Allen, 
492,499,  500.    Sale  by  wrong  sample:  Scott  v.  Littledale,  8  El.  &  B. 
813 ;  Megaw  v.  Molloy,  2  Law  R.  Ir.  530. 

\  384,  Concerning  person. —  Vital  when  personality  im- 
portant. A  mistake  in  regard  to  the  person  dealt  with, 
as  where  the  successor  in  business  fills  an  order  given 
to  his  predecessor,  is  so  material  as  to  render  the  sale 
invalid  for  want  of  privity  between  the  parties,1  when 
the  personality  of  the  party  with  whom  the  negotia- 
tions are  conducted2  is  an  important  factor  of  the 
transaction.3 

Exclusion  from  set-offy  etc.  But  where  through  the 
mistake  of  a  broker,  goods  are  described  in  the  mem- 
orandum of  sale  as  bought  of  a  firm  which  has  been 
dissolved,  the  purchaser  of  the  goods  cannot  avoid  the 
contract,  particularly  after  treating  it  as  subsisting, 
unless  through  such  mistake  he  had  been  induced  to 
think  he  was  dealing  with  one  set  of  men  rather  than 
another,4  and  had  been  prejudiced  or  excluded  from  a 
set-off'.5 

Assent  to  purchase  from  successor.  So  one  who  buys 
goods  at  a  shop  which  has  been  occupied  by  a  person 
who  owes  him,  under  the  supposition  that  he  is  deal- 


I  385  MISTAKE.  568 

ing  with  his  debtor,  but  makes  no  objection,  and  still 
retains  the  goods,  though  he  is  informed  before  leaving 
that  another  person  has  become  the  owner  of  the  stock 
of  goods  there,  and  is  selling  them  on  his  own  account, 
cannot  afterwards  resist  an  action  for  the  price,6  al- 
though the  seller  acquired  them  by  a  conveyance  that 
might  have  been  avoided  as  fraudulent  as  against  the 
creditors  of  the  original  owner.7 

Giving  credit  under  mistaken  assumption.  And  the 
undisclosed  fact  that  a  party  supposed  that  the  commis- 
sion merchant  to  whom  he  was  selling  the  goods  was 
the  agent  of  another,  and  that  the  vendor  would  not 
have  sold  them  to  such  buyer  on  his  own  credit,  does 
not  make  the  case  one  of  mistaken  identity,8  so  as  to 
enable  such  seller  to  recover  in  conversion  against  the 
assumed  principal,  who  had  bought  the  goods  from  the 
first  purchaser.9 

1  See  citations  in  succeeding  notes. 

2  See  Johnson  v.  Raylton,  Law  R.  7  Q.  B.  D.  438. 

3 

to! 
Sn 

4  Mitchell  v.  Lapage,  Holt  N.  P.  253. 

5  Mitchell  ?'.  Lapage,  Holt  N.  P.  253.    But  compare  Boston  Ice  Co. 
v.  Potter,  123  Mass.  28,  31 ;  25  Am.  Rep.  9. 

6  Mudge  v.  Oliver,  1  Allen,  74.    Compare  Orcutt  v.  Nelson,  1  Gray, 
526,  542. 

7  Mudge  v.  Oliver,  1  Allen,  74. 

8  See  \  359,  on  FRAUD  ox  SELLER. 

9  Stoddard  v.  Ham,  129  Mass.  383,  385  ;  87  Am.  Rep.  369.    Compare 
Ex  parte  Barnett,  Law  R.  3  Ch.  D.  123. 

\  385.  Remedies  of  parties.  —  Recovering  back  price. 
Purchasers  of  goods,  in  cases  of  mistake,  may  recover 
back  the  price,  or  any  portion  thereof  which  they  have 
paid,  where  the  thing  sold  has  ceased  to  exist,1  or  is 
deficient  in  quantity  or  weight,2  or  there  has  been  an 
excessive  charge  therefor.3 

Refusal  to  deliver.    But  the  seller  of  animals  cannot 


MISTAKE.  I   385 

refuse  to  deliver  them  because  the  prices  had  advanced 
instead  of  declining  as  the  seller  had  represented  in 
reliance  upon  a  newspaper  report.4 

WJiere  mistake  as  to  subject-matter.  The  determina- 
tion of  the  existence  or  non-existence  of  a  contract, 
vwhich  has  been  entered  into  under  a  mistake  as  to  the 
subject-matter,  may  be  made  in  a  court  of  law.  in  the 
exercise  of  its  powers  as  such.5  And  a  contract  whereby 
a  county  assigned  its  swamp-land  interests  will  be  set 
aside  when  made  under  a  material  mistake  of  facts  as 
to  their  extent.6 

Reforming  bill  of  sale.  So  a  bill  of  sale  of  personal 
property  is  properly  reformed  on  the  ground  that  by 
mistake  of  the  seller's  secretary,  who  drew  the  docu- 
ment, it  had  been  made  to  include  articles  which  did 
not  belong  to  the  seller,  and  which  were  not  in  fact  in- 
cluded in  the  agreement  of  sale  between  the  parties, 
and  that  otherwise  the  unpaid  price  notes  could  not  be 
enforced.7 

1  See  \  379,  on  MISTAKE  AS  TO  SUBJECT-MATTER. 

2  See  I  332,  on  MISTAKE  CONCERXIXG  QUANTITY. 

3  See  Strickland  v.  Turner,  7  Ex.  203  ;  Cox  v.  Prentice,  3  Maule  & 
S.  344 :  Calkins  v.  Grirswold,  11  Hun,  203,  211,  213 ;  Scott  v.  Warner,  4 
Lans.  306 ;  Holtz  v.  Schmidt,  59  N.  Y.  253, 257. 

4  Bird  v.  Forceman,  C2  111.  212. 

5  Carey  v.  Gunnison,  22 N.  W.  Bep.  934, 935, 936.    Mistake  of  fact  in 

uppos- 


6  Montgomery  County  v.  American  Emigrant  Co.  47  Iowa,  91, 96. 

7  Menomonee    Co.  w.  L<m<?worthy,  18  Wis.  444,  446.     Compar- 
McCloskey  v.  McCormick,  44  111.  336. 


§   386  FAILURE   OF  CONSIDERATION.  570 

CHAPTER  XXXIII. 

FAILURE   OF  CONSIDERATION 

2  C36.  What  constitutes. 

I  C37.  Worthlessness  of  article. 

\  C33.  Valueless  obligation. 

\  C33.  Partial  failure  of  consideration. 

I  390.  Remedy  for  such  failure. 

\  388.  What  constitutes.  —  In  general.  There  is  a 
want  or  failure  of  consideration  where  only  part  of 
the  property  bargained  for  under  an  entire  contract  is 
delivered  ; l  or  when  an  article  delivered  to  the  purchaser 
with  a  reservation  of  title  is  destroyed  without  fault  on 
his  part ; 2  or  when  chattels  delivered  under  a  conditional 
sale  are  retaken  and  resold,  as  stipulated,  for  default 
in  payment;3  or  where  a  patent  is  incapable  of  being 
applied  to  any  practical  or  beneficial  purpose.4 

Failure  of  title  and  existence  of  defects.  There  is  like- 
wise a  want  or  failure  of  consideration  so  far  as  the 
objaction  to  an  article  may  arise  from  any  matter  which 
is  at  the  risk  of  the  seller,  such  as  a  breach  of  his 
implied  warranty  of  title,5  but  not  if  it  arises  from  a 
matter  which  is  at  the  risk  of  the  buyer,  such  a.3  defects 
or  unsoundness,6  even,  as  it  is  sometimes  held,  if  thereby 
the  article  is  rendered  worthless.7  And  where  a  party 
sold  certain  goods  to  another,  taking  in  payment  the 
standing  wood  on  a  farm  held  by  the  buyer,  and  the 
amount  of  such  wood  brought  to  market  only  paid  for 
the  expense  of  cutting  and  hauling  it,  and  the  trade  was 
made  pending  equity  proceedings  which  involved  the 
title  to  the  farm,  and  which  resulted  adversely  to  the 
buyer,  it  was  held  that  there  was  a  total  failure  of  con- 
sideration for  the  goods  sold,  and  that  action  would  lie 
for  their  value.8 


571  FAILURE   OF  CONSIDERATION.  §   387 

1  Giles  v.  Edwards,  7  Term  Rep.  181, 182. 

2  Cobb  v.  Tuffts,  2  Tex.  App.  (Civ.  Cas.)  §  154. 

3  Minneapolis  Harvester  Works  v.  Holly,  27  Minn.  495. 

4  Green  v.  Stuart,  7  Baxt.  418,  421.     And  see  Nash  v.  Hull,  102 
Mass,  loO  ;  3  Am.  Hep.  435,437  ;  Harlow  v.  Putnam,  124  Muss.  553,  556. 
Compare  Cowan  v.  Dodd,  3  Cold.  278,  282,  283.    Or  if  no  patent  had 
ever  issued :  'Shepherd  v.  Jenkins,  73  Mo.  510,  513.     But  compare 
Be:?bie  v.  The  Phosphate  Sewage  Co.  Law  R.  1  Q.  B.  D.  679 ;  affirming 
same  case,  Law  R.  10  Q.  B.  491. 

5  See  Eichholz  v.  Banister,  17^  Com.  B.  N.  S.  708 ;  Brown  v.  Cock- 


6  Bryant  v.  Pember,  45  Vt.  487, 491.    And  see  Brewer  v.  Christian, 
9  111.  App.  57,  PI ;  Eagan  v.  Call.  34  Pa.  St.  2C6,  203  ;  T)ro\v  v.  Iloo,  41 
Conn.  41,  50 ;  Smalley  v.  Hendrickson,  29  N.  J.  L.  371,  374 ;  Reed  v. 
Prentiss,  1  N.  H.  174, 176. 

7  Bryant  v.  Pember,  45  Vt.  487, 491.    But  see  §  387,  on  WOBTHLESS- 
NKSS  OF  ARTICLE. 

8  Peckham  v.  Peckham,  13  R.  I.  354, 355. 


I  387.  Worthlessness  of  articlo.  —  Insufficient  defect  of 
quality.  It  is  the  doctrine  of  some  of  the  cases  that  in 
the  absence  of  fraud  or  warranty  in  the  sale  of  personal 
property,  it  is  no  ground  for  setting  up  failure  of  con- 
sideration that  the  article  proves  so  defective  in  quality 
as  to  be  worthless.1 

Difference  not  in  quality,  but  in  substance.  But  the 
distinction  has  been  made  that  when  the  thing  sold 
dilfers,  not  merely  in  quality,  but  in  substance,  from 
what  the  purchaser  was  led  by  the  vendor  to  believe 
he  was  buying,  and  the  difference  in  subject-matter  is 
so  substantial  and  essential  as  to  amount  to  a  failure  of 
consideration,  there  is  no  contract,  and  the  purchaser 
may  recover  back  the  money  paid.2 

Return  of  article,  and  notice  of  worthlessness.  And 
some  of  the  cases,  under  the  force  of  statutory  regula- 
tion, go  so  far  as  to  hold  that  if  an  article  is  worthless 
for  the  purpose  for  which  it  was  purchased,  this  may 
be  shown  as  a  valid  defense  in  an  action  for  the  price, 
as  evincing  an  entire  failure  of  consideration,3  although 


g   388  FAILURE   OF  CONSIDERATION.  572 

there  was  no  return  of  the  article  made  or  offered,  and 
no  notice  given  of  its  worthlessness.4 

Getting  thing  bargained  for.  Yet  it  is  an  established 
rule,  according  to  various  authorities,  that  where  a 
party  gets  all  he  knowingly  contracted  for,  he  cannot 
say  that  he  got  no  consideration,  or  that  the  considera- 
tion has  failed,  although  the  article  turns  out  to  be  of 
no  value.5 

Development  of  latent  defect.  Hence,  where  the 
buyer  received  what  he  agreed  to  purchase,  and  what 
the  seller  intended  to  dispose  of,  namely,  an  apparently 
merchantable  article,  it  is  declared  that  there  cannot 
properly  be  an  entire  failure  of  consideration  because 
the  article  proves  worthless,  through  the  development 
of  a  latent  defect.6 

Entire  want  of  value  to  either  party.  And  what  is 
meant  by  a  failure  of  consideration  is  said  to  be  not 
simply  that  the  article  is  worthless  to  the  purchaser, 
but  that  it  is  of  no  value  to  either  party.7 

1  See  Bryant  v.  Pember,  45  Vt.  487,  490 ;  Deiffendorff  v.  Ga^e,  7 
Barb.  18,  20 ;  Hardesty  v.  Smith,  3  Md.  39, 42 ;  Mason  v.  Chappeil,  15 
Gratt.  527,  523. 

2  Webb  v.  Odell,  49  N.  Y.  583,  585. 

3  Compton  v.  Parsons,  76  Mo.  455,  457  ;  contra,  Mason  v.  Chappeil, 
15  Gratt.  572,  588. 

4  Compton  v.  Parsons,  76  Mo.  455,  457.    And  see  Murphy  v.  Gay, 
37  Mo.  535. 

5  See  Hardesty  v.  Smith,  3  Ind.  30,  44  ;  Baker  ?-.  Roberts,  14  Ind. 
552,  553  ;  Smock  v.  Pierson,  63  Ind.  405,  40J  ;  Niedefer  v.  Chastain,  78 
Ind.  363,  368  ;  Clark  v.  Peabody,  22  Me.  500,  502 ;  Bryant  v.  Pember,  45 
Vt.  487, 491 ;  Drew  v.  Roe,  41  Conn.  41,  50  ;  Johnston  v.  Smith,  8fi  N.  C. 
49'),  502 ;  Lambert  v.  Heath,  15  Mees.  &  W.  486,  487  ;  Lawes  v.  Pursch, 
6  El.  &  B.  930,  936. 

6  Drew  v.  Hoe,  41  Conn.  41,  50. 

7  Johnston  v.  Smith,  86  N.  C.  499, 502.    And  see  Hart  v.  Wright,  18 
Wend.  449,  454. 

§338.  Valueless  obligation.  —  Liability  for  sale  of '.  It 
is  a  general  rule  of  law  that  where  a  party  sells  an  obli- 
gation which  turns  out  to  be  valueless,  and  not  of  such 


573  FAILURE   OF  CONSIDERATION.  §   389 

a  character  as  he  represented  it  to  be,  he  is  liable  to  the 
vendee  as  upon  a  failure  of  consideration.1 

Illustrative  instances.  And  usually,  though  not  al- 
ways solely,  upon  the  express  or  tacit  ground  of  fail- 
ure of  consideration,  recovery  has  been  permitted  of 
money  paid  for  forged  scrip  in  a  railway  company,2 
and  for  shares  in  a  joint  stock  company  which  was 
never  formed;3  and  fora  certificate  for  a  scrip  dividend 
of  a  gas  company,  which  was  adjudged  void;4  and  for 
void  city  bonds,  without  a  return  or  offer  of  return ; 5 
and  for  forged  bills  or  notes  ; 6  and  for  a  bill  of  exchange 
which  turned  out  to  be  invalid  and  worthless  because 
of  a  material  alteration,7  or  lack  of  a  stamp  ; 8  and  for  a 
note  made  by  a  party  who  turned  out  to  have  been 
insane  at  the  time  of  signing ; 9  and  for  accommodation 
notes  sold  for  less  than  their  face,  and  represented  to  be 
business  paper.10 

1  See  Paul  v.  The  City  of  Kenosha,  22  Wis.  266,  272. 

2  Wetstropp  v.  Solomon,  8  Cora.  B.  345. 

3  Kempson  v.  Sanders,  4  Bing.  5. 

4  Wood  v.  Sheldon,  42  N.  J.  L.  421.    And  for  school  land  certifi- 
cates which  were  held  invalid,  see  Kurd  v.  Hall,  12  Wis.  112, 136. 

5  Paul  v.  The  City  of  Kenosha,  22  Wis.  266.    But  compare  Christy 
v.  Sullivan,  50  Cal.  337  ;  19  Am.  Hep.  755. 

6  Merriam  v.  Wolcott,  3  Allen,  258,  259  ;  Terry  v.  Bissell,  26  Conn. 
23,  30  ;  Aldrich  v.  Jackson,  5  B.  I.  218,  219.    And  see  Whitney  v.  Nat. 
Bank,  45  N.  Y.  303. 

7  Burchfield  v.  Moore,  3  El.  &  B.  683. 

8  Gompertz  v.  Bartlett,  2  El.  <fc  B.  849. 

9  Thrall  v.  Newell,  19  Vt.  208. 

10  Webb  v.  Odell,  49  N.  Y.  583,  585.  But  compare  Littauer  v.  Gold- 
man, 72  N.  Y.  506,509;  disapproved,  Woods  v.  Sheldon,  42  N.  J.  L. 
421,  424,  425.  It  is  not  a  failure  of  consideration  of  a  check  given  for 
the  price  of  a  note  bought  at  a  discount,  that  the  makers  have  stopped 
payment,  without  proof  that  the  note  was  entirely  worthless :  Elwell 
v.  Chamberlain,  4  Bosw.  320,  333.  And  compare  Johnson  v.  Barney,  1 
Iowa,  531,  539,  540. 

\  389.  Partial  failure  of  consideration, —  When  occurs. 
There  is  a  partial  failure  of  consideration  where  only 
part  of  a  stipulated  quantity  of  goods  is  delivered,1  or 


g   390  FAILURE   OF   CONSIDERATION.  574 

where  through  the  seller's  fault  no  dividend  is  received 
on  an  interest  in  a  land  association,2  or  where  there  is 
a  collection  of  part  of  judgments  transferred  for  a  note.3 

Change  in  mail  route.  But  there  is  no  partial  failure 
of  consideration  for  a  promissory  note  given  for  the 
assignment  of  a  government  mail  route,  because,  as  the 
existing  law  permitted,  there  has  been  a  cutting  down 
of  the  mail  route  and  a  reduction  of  payment  thereon.4 

Goods  of  inferior  quality.  And  it  has  been  declared 
that  though  the  vendor  may  sometimes  be  entitled  to 
show  the  inferior  quality  of  the  goods  as  a  proof  of  a 
partial  failure  of  consideration,5  yet  he  is  liable  for 
whatever  is  the  real  value  of  the  goods,  if  he  neither 
returns  them  within  a  reasonable  time,  nor  offers  to  do 


1  Devaux    v.  Connolly,  8  Com.  B.  640,  667,  668.     But  compare 
Richards  r.  Shaw,  67  111.  222,  224  ;  Avery  v.  Wilson,  81  N.  Y.  341,  344. 

2  Purkett  v.  Gregory,  2  Scam.  44,  45. 

3  Harper  v.  Columbus  Factory,  35  Ark.  127,  181.    And  it  may  be 
shown  that  the  seller  failed  to  perform  part  of  the  consideration  for 
an  order  for  a  machine,  namely,  that  he  should  furnish  a  man  to  set 
it  up,  and  make  it  work  as  prescribed  :  Wood  Mowing  etc.  Co.  v. 
Gartner,  21  N.  W.  Rep.  885. 

4  Wells  v.  Carr,  8  West  C.  Rep.  127, 

5  See  next  section  hereof. 

6  Bischof  v.  Lucas,  6  Ind.  26, 

§  390.  Remedy  for  such,  failure.  —  Defense  to  suit  for 
price.  Although  there  is  still  a  conflict  in  the  cases  on 
the  subject,  yet  it  appears  to  be  the  prevailing  modern 
doctrine,  at  least  in  this  country,  that  what  is  denomi- 
nated partial  failure  of  consideration  may  be  given  in 
evidence  in  mitigation  of  damages,  even  in  a  suit  on  a 
price  note.1  And  in  various  States,  such  defense  is  al- 
lowed by  statute,2  and  in  cases  of  warranty.3 

Separate  suit  or  counter-claim.  But  in  other  States,  a 
partial  failure  of  consideration  can  be  remedied  only  by 
a  distinct  action,  or  sometimes  by  a  counter-claim,4 


575  FAILURE   OF  CONSIDERATION.  \   390 

Delivery  of  part  under  entire  contract.  Where  there 
is  a  delivery  of  part  only  under  an  agreement  to  sell  all 
the  cord-wood  at  a  certain  place,  the  buyers  may  re- 
cover back  the  money  they  had  paid  under  this  entire 
contract,  on  the  ground  that  the  consideration  had 
failed.5 

Several  chattels  sold  together.  But  if  several  chattels 
are  sold  together  for  one  gross  sum,  though  this  con- 
stitutes an  entire  contract,6  yet  if  the  vendee  retains 
such  as  were  delivered,  he  cannot  recover  back  any 
portion  of  the  money  paid  by  him,  upon  the  ground  of 
failure  of  consideration.7 

1  Withers  v.  Greene,  9  How.  213,  230,  and  cases  reviewed.    And 
see  Andrews  v.  Wheaton,22  Conn.  112,  118;  Nations  v.  Thomas,  25 
Tex  Supp.  221,  223 ;  Staab  v.  Garca  Y  Ortez,  1  Pacif.  Rep.  (N.  M.)  857. 
Upon  a  plea  of  total  failure  of  consideration,  evidence  of  partial  fail- 
ure, but  not  of  an  attempted  rescission  based  thereon,  is  admissible 
in  reduction  of  damages  pro  tanto :  Manuf .  Co.  v.  Lewis,  30  Kan.  541 : 
1  Pacif.  Rep.  812. 

2  Nichols  v.  Hunton,  45  N.  H.  470 ;  Schuchmann  v.  Knoebel,  27  111. 
175, 178. 

3  Wright  v.  Findley,  21  Ga.  59  ;  Beall  v.  Pearre,  12  Md.  550. 

4  Johnson  v.  Smith,  86  N.  C.  498, 501.    And  see  Henderson  v.  Ward, 
27  Vt.  432,  434, 435 ;  Burton  v.  Schermerhorn,  21  Vt.  289,  291. 

5  Giles  v.  Edwards,  7  Term  Rep.  181, 182. 

6  Miner  v.  Bradley,  22  Pick.  457,  459.    And  see  Young  etc.  Manuf. 
Co.  v.  Wakefield,  121  Mass.  91,  92,  93  ;  Norris  v.  Harris,  15  Cal.  226,  256. 

7  Miner  v.  Bradley,  22  Pick.  457,459.    Compare  Chanter  v.  Leese, 
5  Mees.  &  W.  698,  701,  702. 


391  SELLER'S  REMEDIES.  576 


CHAPTER    XXXIV. 

SELLER'S  REMEDIES. 

§  391.  In  general. 

$  392.  Damages  for  non-acceptance. 

2  393.  Notice  not  to  manufacture. 

§  394.  Forms  of  action. 

2  395.  Waiting  for  expiration  of  credit. 

§  396.  Remedies  against  the  goods. 

§  391,  In  general.  —  Against  buyer  and  against  goods. 
The  seller's  remedies  are  ordinarily  stated  to  be  of  two 
kinds  :  First,  by  personal  action  against  the  buyer ; 
second,  by  proceedings  against  the  goods.1 

Action  for  goods  sold.  Where  an  actual  delivery  has 
taken  place,  the  remedy  of  the  seller  by  personal  action 
against  the  buyer,  who  fails  to  pay  for  them  as  agreed, 
is  a  suit  for  goods  sold  and  delivered.2  But  where  the 
seller  still  retains  possession  of  the  goods,  but  is  ready 
to  deliver  them,  on  payment,  the  seller's  remedy 
against  the  defaulting  buyer  is  a  suit  for  goods  bar- 
gained and  sold.3 

Damages  for  failure  to  accept.  And  the  buyer  should 
be  sued  specially  for  damages  for  not  accepting  the 
goods,  where  the  title  therein  has  not  passed  to  the 
buyer,  and  the  seller  still  retains  the  possession  of 
the  goods.4 

Resale,  etc.  Furthermore,  the  seller  who  is  ready  to 
deliver  may,  according  to  many  of  the  American  cases, 
have  the  choice  of  three  remedies :  First,  to  treat  the 
property  as  his  own,  and  sue  for  damages,  in  cases 
where  he  has  not  parted  with  the  title :  second,  to  treat 
the  property  as  that  of  the  buyer,  and  sue  for  the  price, 
in  cases  where  he  has  parted  with  the  title ;  third,  to 


577  SELLER'S  REMEDIES.  §  392 

treat  the  property  as  that  of  the  buyer,  resell  it  for  him, 
and  sue  for  the  difference  between  the  contract  price 
and  that  obtained  on  resale.5 

,  Sellers  lien  and  stoppage  in  transitu.  Where  the  title 
has  passed,  and  the  seller  retains  possession  of  the 
goods,  he  has  a  lien  upon  them  for  the  unpaid  price  ;6 
while  if  he  has  delivered  the  goods  to  a  carrier  or  other 
intermediate  agent,  he  may  stop  them  in  transit,  in  case 
of  the  buyer's  insolvency,  before  they  reach  his  hands.7 

1  2  Schouler  on  Personal  Property,  §  511.    Proceedings  against 
goods:  See  Fetter  v.  Field,  1  La.  An.  80,  84  ;  Huelst  v.  Reyns,  1  Abb, 
Pr.  N.  S.  27,  29  ;  Goldsmith  v.  Bryant,  26  Wis.  34     And  consult  subse- 
quent chapters  on   RESALE,  SELLER'S  LIEN,  and  STOPPAGE  IN 
TRANSITU. 

2  See  Story  on  Sales,  ?  433. 

3  See  Frazier  v.  Simmons,  139  Mass.  531,  535;  Morse  v.  Sherman, 
106  Mass.  430, 432  ;  distinguishing,  Atwood  v.  Lucas,  53  Me.  508  ;  89  Am. 
Dec.  713.    And  consult  §  223,  on  SELLER'S  CUSTODY. 

4  See  2  Schouler  on  Personal  Property   2  513 ;  Story  on  Sales, 
§533. 

5  See  2  Corbin's  Benjamin  on  Sales,  \  1117,  n.  1  ;  Bennett's  Benja- 
min on  Sales,  788  ;  1  Sedgwick  on  Damages  (7th  ed.),  596,  n.  a  ;  Dun- 
Stan  v.  McAndrew,  44  N.  Y.  72  ;  Hayden  v.  Demets,  53  N.  Y.  426,  431  ; 
Pittsburgh  etc.  Ry.  Co.  v.  Heck,  50  Ind.  303,  308.    Right  of  resale : 
See  Hunter  v.  Wetsell,  84  N.  Y.  549,  555  ;  Van  Horn  v.  Rucker,  33  Mo. 
391 ;  84  Am.  Dec.  52. 

6  See  Arnold  v.  Delano,  4  Gush.  33  ;  50  Am.  Dec.  754.    And  consult 
subsequent  chapter  on  SELLER'S  LIEN. 

7  See  2  Bouvier  Law  Diet.  (14th  ed.)  548.    And  consult  subsequent 
chapter  on  STOPPAGE  IN  TRANSITU. 

\  392.  Damages  for  non-acceptance.  —  When  only  rem- 
edy. Where  the  seller  is  prevented  from  performing 
an  executory  contract,  a  suit  for  damages  for  non- 
acceptances  is  his  only  remedy.1 

General  rule.  And  where  the  title  to  the  goods  has 
not  passed,  and  the  seller  does  not  resort  to  a  resale  of 
the  goods  in  his  possession,  he  can  in  general  recover,2 
not  the  full  price  of  the  goods,  but  only  the  damage  he 
has  sustained.3  The  rule  constantly  applied  in  the 
courts  of  Great  Britain  and  the  United  States,  holds  the 
damages  to  which  the  buyer  is  entitled  under  these 
NEWMARK  SALES.  — 49. 


§  393  SELLER'S  REMEDIES.  578 

circumstances  to  be,  in  general,  the  difference  between 
the  contract  price  and  the  market  price  of  the  goods  at 
the  time  and  place  of  breach.4 

Exceptional  cases.  But  there  may  be  cases  in  which 
the  property  is  wholly  worthless  in  the  hands  of  the 
seller,  as  where  an  article  is  specially  manufactured  to 
order  for  the  purchaser,  and  there  the  whole  price 
agreed  to  be  paid  should  be  recovered,5  while  even 
elements  of  special  damage  may  be  considered  in  the 
assessment  of  damages.6 

1  See  Hosmer  v.  Wilson,  7  Mich.  294,  303,  304  ;  Butler  v.  Butler,  77 
N.  Y.  472  ;  Pittsburgh  etc.  By.  Co.  v.  Heck,  50  Ind.  303,  306  ;  2  Corbin's 
Benjamin  on  Sales,  §  1117,  n.  1,  citing  foregoing  cases.    And  consult 
Atkinson  v.  Bell,  8  Barn.  &  C.  277 ;  Langdell's  Cases  on  Sales,  801, 805  ; 
Allen  v.  Jarvis,  20  Conn.  38, 50  ;  Moody  v.  Brown,  34  Me.  107, 109.    Com- 
pare Collins  v.  Delaporte,  115  Mass.  159, 162. 

2  According  to  Bennett's  Benjamin  on  Sales,  ?  758.    And  see  1 
Chitty  on  Contracts  (llth  Am.  ed.),  615. 

3  See  Laird  v.  Pirn,  7  Mees.  &  W.  474,  478;  Band  v.  White  Moun- 
tains B.  B.  Co.  40  N.  H.  79,  86  ;  1  Chitty  on  Contracts  (llth  Am.  ed.), 
615,  and  cases  in  note  p.    But  compare  Thorndike  v.  Locke,  98  Mass. 
340 ;  Pearson  v.  Mason,  120  Mass.  53,  58  ;  Phillips  ?\  Merritt,  2  Up.  Can. 
C.  P.  513,  527  ;  Moore  v.  Logan,  5  Up.  Can.  C.  P.  294, 296. 

4  See  Barrow  v.  Arnaud,  8  Q.  B.  604,  610  ;  Gordon  v.  Norris,  49 
N.  H.  376,  385  ;  Haines  v.  Tucker,  50  N.  H.  307,  314  ;  Allen  v.  Jarvis,  20 
Conn.  38,  48  ;  Bement  v.  Smith,  15  Wend.  493,  497  ;  McNaught  v.  Dod- 
son,  49  111.  446,448  ;  Fell  v.  Muller,78  Ind.  507, 512  ;  Chapman  r.  Ingram, 
30  Wis.  290,  294  ;  Northup  v.  Cook,  39  Mo.  208,  211 ;  2  Schouler  on  Per- 
sonal Property,  §  513,  citing  most  of  these  cases  in  support  of  text. 
And  consult  generally,  Hadley  v.  Baxendale,  9  Ex.  341, 354  ;  Hobbs  ?\ 
London  etc.  B.  B.  Co.  Law  B.  10  Q.  B.  Ill,  117 ;  Olyphant  v.  St.  Louis 
Ore  etc.  Co.  28  Fed.  Bep.  729. 

f>    See  Allen  v.  Jarvis,  20  Conn.  38,  49  ;  Gordon  v.  Norris,  49  N.  H. 
376,  383,  384  ;  Bement  v.  Smith,  15  Wend.  493,  497. 
6    See  Knowlton  v.  Oliver,  28  Fed.  Bep.  516. 

§  393.  Notice  not  to  manufacture.  —  General  doctrine. 
It  has  been  regarded  as  settled  law  that  where  there  is 
a  contract  for  the  manufacture  and  delivery  of  goods  at 
a  definite  future  period,  and  before  the  time  of  perform- 
ance arrives,  the  purchaser  repudiates  the  contract  and 
notifies  the  vendor  that  he  will  not  accept  the  goods  if 
manufactured,  such  refusal  and  notice  is  a  breach  of  the 
contract,  which  excuses  the  vendor  from  manufacturing 


579  SELLER'S  REMEDIES.  §  394 

the  goods,1  and  furnishes  him  if  he  shows  himself  to 
have  been  ready,  willing,  and  able  to  perform  on  his 
parfc,  a  good  cause  of  action  on  which  he  may  sue,  if  not 
at  once,  at  least  as  soon  as  the  period  of  performance 
fixed  by  the  contract  has  elapsed.2 

Applications.  These  principles  have  been  applied  to 
a  contract  for  the  manufacture  and  supply  of  railway 
chairs  ;3  to  a  contract  to  take  malt  in  specified  monthly 
quantities  ; 4  to  a  contract  to  manufacture  phosphate  by 
a  special  process;5  and  to  an  order  for  a  designated 
number  of  hoes  to  be  manufactured  and  delivered 
within  a  certain  time.6 

1  Eckenrode  v.  Chemical  Co.  51  Md.  51,  59. 

2  Eckenrode  v.  Chemical    Co.  55  Md.  51,  59.    And  see  Cort  v. 
Ambergate  By.  Co.  17  Q.  B.  127, 148 ;  Black  v.  Woodrow,  39  Md.  194, 
216;  Haines  v.  Tucker,  50  N.  H.  307;  Clement  etc.  Manuf.   Co.  v. 
Meserole,  107  Mass.  362.    Consult,  also,  Bennett's  Benjamin  on  Sales, 
?  760  ;  Campbell  on  Sales.  336  ;  Silkstone  Coal  Co.  v.  Joint  Stock  Coal 
Co.  35  L.  T.  N.  S.  668;  Hochster  v.  De  La  Tour,  2  El.  &  B.  678 ;  22  Law 
J.  Q.  B.  455  ;  Frost  v.  Knight,  Law  B.  5  Ex.  322  ;  Law  B.  7  Ex.  Ill ; 
Parker  v.  Pettit,  43  N.  J.  L.  512,  517. 

3  Cort  v.  Ambergate  By.  Co.  17  Q.  B.  127.    See  Black  v.  Woodrow, 
S9  Md.  196,  216. 

4  Haines  v.  Tucker,  50  N.  H.  307. 

5  Eckenrode  v.  Chemical  Co.  55  Md.  51. 

6  Clement  etc.  Manuf.  Co.  v.  Meserole,  107  Mass.  362.    So  on  ex- 
change of  real  estate  (Smith  v.  Lewis,  24  Conn.  624;  26  Conn.  110); 
and  on  sale  of  grain  (Hughes'  Case,  4  Ct.  of  Cl.  64,  73);  and  on  con- 
tract to  furnish  hay  to  government :   Yates  v.  United  States,  15  Ct.  of 
Cl.  119, 125. 

\  394.  Forms  of  action.  —  Special  declaration.  Where 
the  property  in  the  goods  has  not  passed,  the  declara- 
tion must  be  special  for  non-acceptance  j1  and  a  special 
declaration  may  also  be  requisite  where  payment  was 
to  be  wholly  or  in  part  by  bill  or  note.2 

Common  counts  for  goods  sold.  But  where  the  prop- 
erty has  passed  to  the  buyer,  it  is  laid  down  that  the 
seller  may  recover  the  price  of  the  goods  on  the  common 
counts  for  goods  bargained  and  sold,  or  for  goods  sold 
and  delivered,  as  the  rule  of  damages  and  the  proof 


§  394  SELLER'S  REMEDIES.  580 

requisite  to  authorize  recovery  of  the  price  is  the  same 
in  each.3  And  it  has  been  recently  held  that  there  may 
be  a  bargain  and  sale  of  goods,  sufficient  to  transfer  the 
title,  and  thus  to  support  an  action  for  goods  bargained 
and  sold,  without  any  such  delivery  as  will  amount  to 
a  transfer  of  possession.4 

Election  of  remedies.  The  doctrine  that  if  one  elects 
between  two  inconsistent  remedies  the  right  to  pursue 
the  other  is  forever  lost,  has  been  applied  so  as  to  hold 
that  where  the  seller  treats  the  sale  as  rescinded  for 
fraud,  and  recovers  in  replevin  for  the  goods,  they  can- 
not a  year  afterward  sue  again  upon  the  contract.5 

Suit  for  price.  In  an  action  on  the  common  counts  to 
recover  the  price  of  property  sold  and  delivered,  when 
the  delivery  is  not  denied  and  the  price  is  fixed  by  the 
written  contract,  the  plaintiff  will  be  entitled  to  recover 
the  value  of  the  goods  actually  furnished,  subject  to 
deductions  to  be  made  therefrom  to  the  extent  of  the 
damages  sustained  by  defendant  by  reason  of  plaintiff's 
non-performance  of  all  the  conditions  of  the  contract.6 

1  See  Bailey  v.  Smith,  43  N.  H.  141, 143  ;  Gordon  v.  Norris,  49  N.  H. 
376,  382 ;  Stearns  v.  Washburn,  7  Gray,  187,  189 ;  Ganson  v.  Madigan,  13 
Wis.  67, 72.    And  consult  1  Chitty  on  Contracts  (llth  Am.  ed.),  6i5,  and 
cases  in  note  p ;  Bennett's  Benjamin  on  Sales,  \  765 ;  Story  on  Sales, 
\  433. 

2  2  Schouler  on  Personal  Property,  \  527. 

3  See  Bennett's  Benjamin  on  Sales,  \  765,    And  consult  1  Chitty 
on  Contracts  (llth  Am.  ed.),  614,  and  note  n ;  2  Chitty  on  Contracts 
(llth  Am.  ed.),  1330;  1  Sedgwick  on  Damages  (5th  ed.),  312  ;  Wood's 
Mayne  on  Damages,  ?  200 ;  Bailey  v.  Smith,  43  N.  H.  141, 143  ;  Thomp- 
son v.  Alger,  12  Met.  428,  443  ;  Nichols  v.  Morse,  100  Mass.  523  ;  Morse 
r.  Sherman,  106  Mass.  430,  432.    But  compare  Gordon  v.  Norris,  49 
N.  H.  376,  382,  383. 

4  Frazier  v.  Simmons,  139  Mass.  531,  535.    And  see  Morse  v.  Sher- 
man, 106  Mass.  430, 432 ;  distinguishing,  Atwood  v.  Lucas,  53  Me.  508  ;  89 
Am.  Dec.  713.    But  compare  Messer  v.  Woodman,  22  N.  H.  172  ;  53 
Am.  Dec.  241,243  ;  Newmarket  Iron  Foundry  v.  Harvey,  23  N.  H.  395, 
406. 

5  Farwell  v.  Myers,  26  N.  W.  Rep.  (Mich.)  328,  329 ;  citing,  Thomp- 
son v.  Howard,  31  Mich   309 ;  Wetmore  v.  McDougall,  32  Mich.  276 ; 
Dunks  v.  Fuller,  32  Mich.  243;  Neild  v.  Burton,  49  Mich.  53  ;  12  N.  W. 
Rep.  906.    Waiving  tort  and  suing  in  assumpsit :  See  Berkshire  Glass 
Co.  v.  Wolcott,  2  Allen,  227,  228  ;  Jones  v.  Hoar,  5  Pick.  285, 290.    Com- 
pare Kraus  v.  Thompson,  30  Minn.  64 ;  44  Am.  Rep.  182. 


581  SELLER'S  REMEDIES.  §  395 

6  Gage  v.  Myers,  26  N.  W.  Hep.  (Mich.)  522  ;  citing,  Begole  v. 
McKenzie,  26  Mich.  470  ;  Mitchell  v.  Scott,  41  Mich.  108  ;  1  N.  W.  Hep. 
963  ;  Moon  v.  Harder,  38  Mich.  566  ;  McQueen  v.  Gamble,  33  Mich.  344  ; 
Hoagland  v.  Moore,  2  Blackf.  167  ;  Dubois  v.  Delaware  etc.  Canal  Co. 
4  Wend.  235 ;  Moulton  v.  Trask,  9  Met.  577.  Like  effect:  Flanders  v. 
Putney,  28  N.  H.  358  ;  citing,  Britton  v.  Turner,  6  N.  H.  481  ;  Horn  v. 
Batchelder,  41  N.  H.  86.  And  see  Coit  v.  Schwartz,  29  Kan.  344.  Suit 
for  price:  Consult  further,  Moline  Scale  Co.  v.  Beed,  52  Iowa,  307; 
McAllister  v.  Safely,  65  Iowa,  719, 723 ;  20  The  Beporter,  6, 7 ;  Hosley 
V.  Scott,  26  N.  W.  Rep.  (Mich.)  659,  660;  McLennan  v.  McDermid,  52 
Mich.  468,  470  ;  Bullock  v.  Finley,28  Fed.  Bep.  514,  515;  Overstreet  v.. 
Gallaher,  42  Ark.  208 ;  McBain  v.  Austin,  16  Wis.  87 ;  82  Am.  Dec.  705  ; 
Cheney-Bisrelow  Wire  Works  v.  Sorrell,  142  Mass.  442  ;  8  N.  E.  Rep. 
332 ;  Wineman  v.  Walters,  53  Mich.  470, 472  ;  Compton  v.  Parsons,  76 
Mo.  455, 457  ;  Rodman  v.  Guilford,  112  Mass.  405, 406, 407. 

\  395.  Waiting  for  expiration  of  credit.  —  In  general. 
If  the  sale  is  not  for  cash,  but  credit  is  given  for  a  definite 
period,  either  absolutely  or  by  taking  a  negotiable  se- 
curity like  a  bill  or  note,  the  seller  cannot  ordinarily 
bring  his  action  against  the  purchaser  for  the  price  of 
the  goods,  until  the  period  of  credit  has  expired,  or 
until  the  note  or  bill  has  matured.1 

Refusal  to  give  security.  But  it  is  fully  settled  that 
where  goods  are  sold  upon  credit,  and  the  purchaser 
agrees,  as  part  of  the  contract,  to  execute  notes,  pay- 
able at  a  future  day,  for  the  purchase  price,  the  refusal 
of  the  purchaser  to  execute  the  notes  according  to  the 
contract  entitles  the  seller  to  maintain  an  action  for 
such  refusal,  and  the  measure  of  damages  is  the  full 
price  of  the  goods  sold.2 

Buyers  fraud.  Yet  even  if  the  vendee  obtains  pos- 
session of  the  goods  fraudulently,  or  without  giving  the 
security  agreed  upon,  this  does  not  enable  the  vendor 
to  sue  for  goods  sold  and  delivered  before  the  expira- 
tion of  the  term  of  credit,  but  his  immediate  remedy  is 
by  an  action  for  breach  of  the  special  agreement,  or  in 
tort.3 

Retention  of  goods  sent.  If,  however,  there  is  a  par- 
tially executed  contract  for  a  sale  on  credit,  and  the 
vendee  gives  notice  that  he  will  not  carry  out,  but  yet' 
retains  the  goods  already  sent,  it  has  been  held  that  the 


§  396  SELLER'S  REMEDIES.  582 

vendor  has  the  legal  right  to  consider  the  contract  as 
rescinded,  and  may  at  once  bring  action  on  the  new 
contract  resulting  from  the  buyer's  conduct,  and  re- 
cover on  the  common  counts  the  value  of  the  goods 
delivered.4 

1  Story  on  Sales,  ?  434.    And  see  Magrath  v.  Tinning,  6  Up.  Can. 
Q.  B.  (O.  S.)  484,  4S5  ;  Wakefield  v.  Gorrie,  5  Up.  Can.  Q.  B.  159,  163 ; 
Silliman  v.  McLean,  13  Up.  Can.  Q.  B.  544,  545,  546  ;  2  Schouler  on  Per- 
sonal Property,  §  527  ;  Keller  v.  Strasburger,  23  Hun,  625,  626. 

2  Carnahan  ?;.  Hughes,  9  N.  E.  Rep.  (Ind.)  79;   citing,  Hays  v. 


2  Carnahan  ?;.  Hughes,  9  N.  E.  Rep.  (Ind.)  79;  citing,  Hays  v. 
Weatherman,  14  Ind.  341 ;  Clodtfeldter  v.  Hulett,  72  Ind.  137,  140  ; 
Barrow  v.  Mullin,  21  Minn.  374;  Hanna  v.  Mills,  21  Wend.  90  ;  2  Cor- 
bin's  Benjamin,  par.  1127.  Compa 
$  7G5  ;  citing,  1  Chitty  on  Contracts 
Bass  v.  White,  7  Lans.  171. 


re  Bennett's  Benjamin  on  Sales, 
its  (llth  Am.  ed.),  615,  n.  r,  and  cases  ; 

3  See   Kellogg   v.  Turpie,  2    111.  App.  55,  60-70,  reviewing    the 
authorities  :  Bennett's  Benjamin  on  Salt's,  1 320,  n.  d,  p.  335  ;  §  433,  r.. 
h,  p.  575  ;  §  765,  n.  z,  p.  872.    And  consult  Ferguson  v.  Carrington,  9 
Barn.  &  C.  59 ;  Strutt  v.  Smith,  1  Cromp.  M.  &  R.  312 ;  Sheriff  v. 
McCoy,  27  Up.  Can.  Q.  B.  597,  601 ;  Auger  v.  Thompson,  3  Ont.  App. 
19,22,23;  Dellone  v.  Hull,  47  Md.  112,  115;  Moriarity  v.  Stofferan,  89 
111.  fi28, 529  ;  Bicknell  v.  Buck,  58  Ind.  354.    But  see  contra,  Dietz  r. 
Sntcliff,  80  Ky.  650 ;  15  The  Reporter,  713 ;  Rice  v.  Andrews,  33  Vt. 
691,  694. 

4  See  Bartholomew  v.  Marwick,  15  Com.  B.  N.  S.  711, 716 ;  33  Law 
J.  Com.  P.  145.    But  see  Wayne's  Merthyr  Steam  Co.  v.  Morewood, 
47  Law  J.  Q.  B.  746,  748,  749.    Consult  Bennett's  Benjamin  on  Sales, 
§  765,  whence  paragraph  derived. 

$  396.  Remedies  against  the  goods.  —  Lien  and  stoppage* 
A  suit  for  goods  bargained  and  sold,  is  not  the  sole 
remedy  of  the  seller  for  default  in  payment  for  goods 
remaining  in  his  possession  after  the  title  thereto  has 
passed  to  the  buyer,1  for  the  common  law  recognizes  a 
lien  of  the  seller  upon  the  goods  for  their  price,  so  long 
as  he  does  not  part  with  them  ;2  and  in  aid  or  extension 
of  this  comes  the  right  of  stoppage  in  transitu  given  by 
the  law  to  an  unpaid  vendor,  where  the  goods  have  been 
put  in  transit  for  delivery  to  the  buyer,  so  that  they  are 
in  actual  possession  of  neither  party  to  the  contract,  and 
under  which  the  seller  may  intercept  the  goods  if  he 
can,  so  as  to  prevent  them  from  reaching  the  possession 
of  an  insolvent  buyer.3 

Eight  of  resale.    The  right  of  resale  of  the  goods  is  a 


583  SELLER'S  BEMEDIES.  §  396 

further  privilege  generally  allowed  to  the  vendor  in  this 
country.4 

1  Right  to  such  action :  See  Frazier  v.  Simmons,  139  Mass.  531, 535 ; 
§  394,  on  FORMS  OF  ACTION. 

2  See  Clark  v.  Draper,  19  N.  H.  419,  421 ;  Parks  v.  Hall,  2  Pick.  206, 
212 ;  Arnold  v.  Delano,  4  Cush.  33  ;  50  Am.  Dec.  754  ;  Barrett  v.  Pritch- 
ard,  2  Pick.  512,515;  White  v.  Welsh,  38  Pa.  St.  396,420;  Haskins  v. 
Warren,  115  Mass.  514, 533 ;  Millikeii  v.  Warren,  57  Me.  46, 50 ;  Griffiths 
v.  Perry,!  El.  <fc  E.  680;  McEwan  v.  Smith,  2  H.  L.  Cas.  309,  323; 
Dodsley  v.  Varley,  12  Ad.  <fe  E.  632, 634  ;  Langdell's  Cases  on  Sales,  155. 
And  consult  further,  subsequent  chapter  on  SELLER'S  LIEN. 

3  See  Bennett's  Benjamin  on  Sales,  §  706 ;  2  Corbin's  Benjamin  on 
Sales,  1 1129  ;  2  Bouvier  Law  Diet.  tit.  Stoppage  in  Transitu  ;  Loeb  v. 
Peters,  62  Ala.  243;  35  Am.  Hep.  17,18;  2  Kent  Com.  540;  Atkins  v. 
Colby,  20  N.  H.  154,  155 ;  O'Brien  v.  Norris,  16  Md.  122,  130 ;  Inslee 
v.  Lane,  57  N.  H.  454, 457  ;  Hause  v.  Judson,  4  Dana,  7  ;  29  Am.  Dec. 
377,  380. 

4  See  §  404,  on  RIGHT  OF  RESALE. 


397  BUYER'S  REMEDIES.  584 


CHAPTER    XXXV. 
BUYER'S  REMEDIES. 

§  397.  In  general. 

§  398.  Damages  for  failure  to  deliver. 

5  399.  Restrictions  on  recovery. 

§  400.  Suit  for  failure  to  deliver. 

I  401.  Where  title  iri  buyer. 

§  402.  Delay  in  delivery. 

g  403.  Divergence  of  goods  from  contract. 

£397.  In  general.  —  Leading  grounds  for.  There  are 
three  leading  instances  in  which  the  buyer  of  chattels 
finds  occasion  to  invoke  his  remedies  under  the  sale 
contract :  First,  where  the  seller  fails  altogether  to  de- 
liver ;  second,  where  delivery  is  made  or  tendered,  but 
the  thing  is  not,  in  kind  or  quality  or  quantity,  what 
was  bargained  for ;  and  third,  where  the  delivery  is 
unreasonably  late.1 

Application  of  remedies.  The  breach  for  which  a 
remedy  is  sought  may  be  of  the  principal  contract  for 
the  transfer  of  property  and  delivery  of  possession,  or 
of  the  collateral  contract  of  warranty  either  of  quality 
or  of  title  ; 2  and  the  remedies  of  the  buyer  may  be  in- 
voked before  obtaining  possession  of  the  goods,  both  in 
cases  where  the  contract  is  executory  only,  and  in  cases 
where  the  property  has  passed,  or  they  may  be  invoked 
after  taking  actual  possession  of  the  goods.3 

Avoidance  of  contract.  The  buyer  has  also  the  right 
to  avoid  the  contract  for  mistake,  failure  of  considera- 
tion, fraud,  or  illegality.4 

Non-conformity  to  executory  contract.  When  the  thing 
tendered  under  an  executory  contract  differs  as  regards 
time,  quality,  amount,  or  kind,  from  what  the  buyer 


585  BUYER'S  REMEDIES.  §  397 

agreed  to  receive,  it  may  be  declined  and  the  breach 
treated  as  entire,  or  it  may  be  accepted  as  so  much  on 
_account  of  what  the  contractor  agreed  to  do  or  render, 
and  an  action  brought  for  the  amount  by  which  the 
performance  falls  short  of  the  promise.5 

Liability  for  price.  The  liability  of  the  buyer  to  pay 
the  price  is  extended  to  cover  interest  thereon  from  the 
date  of  delivery.6  But  it  is  said  that  a  purchaser's  lia- 
bility to  pay  any  part  of  the  purchase  price  is  canceled 
by  the  vendor's  wrongful  resale  of  the  goods.7 

1  2  Schouler  on  Personal  Property,  §  570.    Divergence  of  thing 
from  that  bargained  for :  Hare  on  Contracts,  \  537.    Inferiority  in 
quality :    Correio  v.  Lynch,  65   Cal.  273.    Deficiency  in   quantity  : 
Creighton  v.  Comstock,  27  Ohio  St.  548  ;  as  noted,  2  Schouler  on  Per- 
sonal Property,  §  590.    When  no  right  of  action  by  buyer's  assignee 
for  rebate  of  part  of  purchase  price :  McCall  v.  Frith,  5  N.  E.  Rep. 
(N.  Y.)  429.    Buyer  guilty  of  equal  negligence  with  seller :  Woods  v. 
Bocchi,  32  La.  An.  210,  214.    Bemedies  based  on  subsequent  trans- 
actions induced  by  sale :    2  Schouler   on  Personal    Property,  593 ; 
referring  to  Drysdall  v.  Smith,  44  Mich.  119,  122.    Waiver  of  any 
question  growing  out  of  the  weighing  of  cattle  by  buyer's  settlement 
and  giving  of  price  note  :  Wood  v.  Dickinson,  8  Pacif.  Hep.  (Kan.)  205. 

2  Warranty  :  §?  315-353.    Warranty  of  title  :  \\  321-330.    Warranty 
of  quality:  §§331-333.    Particular  warranties:  £2334-350.    Remedies 
for  breach  of  warranty,  ££  351-353. 

3  Bennett's  Benjamin  on  Sales,  \  869,  whence  text  of  next  para- 
graph also  derived.    Damages  on  breach  of  contract  of  sale  of  adver- 
tising space  in  newspapers:  Hubbard  v.  Rowell,  51  Conn.  423,  4-6. 
Error  in  taking  question  of  nominal  damages  from  jury  :  Potter  v. 
Mellen,  30  N.  W.  Bep.  (Minn.)  438. 

4  Mistake  in  general :  \\  377-385.    Failure  of  consideration  in  gen- 
eral :  M  386-390.    When  plea  not  proper :  Sterling  Organ  Co.  v.  House, 
25  W.  Va.  64.    Bemedies  on  failure  of  title  in  whole  or  part :  See 
Tabor  v.  Harrimon,  59  N.  H.  226 ;  Webster  v.  Laws,  89  N.  C.  224,  228. 
Fraudulent  sales:  U  354-361.    Illegal  sales:  \\  362-376.    Bight  to  re- 
claim delivered  goods  for  breach  of  condition  of  giving  note  for  price : 
Osborn  v.  Gantz,  60  N.  Y.  540  ;  stated.  Biddle  on  Chattel  Warranties. 
2273. 

5  Hare  on  Contracts,  §  537  ;  citing,  on  treatment  of  breach  as  entire, 
Hart  v.  Wright,  17  Wend.  267,  277  ;  Howard  v.  Hoey,  23  Wend.  350  ; 
Doane  v.  Dunham,  65  111.  512  ;  79  111.  131 ;  Youghiogheny  Iron  and 
Coal  Co.  v.  Smith,  66  Pa.  St.  340  ;  Pope  v.  Allis,  115  U.  S.  363,  371 ;  and 
on  acceptance  of  part,  Lewis  v.  Bountree,  78  N.  C.  323 ;  Cox  v.  Long. 
69  N.  C.  7  ;  Polhemus  v.  Heiman,  45  Cal.  572 ;  Barrekins  v.  Bevan,  3 
Bawle,  23,  44.    Damages  in  each  case  :  Hare  on  Contracts,  \\  537,  538. 
Excessive  freight  charges:  Johnson  v.  Latimer,  71  Ga.  470,  472.    No 
obligation  to  accept  goods  not  shipped  by  the  sellers  themselves,  as 
stipulated  :  Cunningham  v.  Judson,  30  Hun,  63, 67.    Delay  of  delivery 
in  cargoes:  Hill  v.  Chipman,  59  Wis.  211,  216.    When  no  recovery 
back  of  price,  where  part  payment  and  refusal  to  accept :  Stevens  v. 
Brown,  60  Iowa,  403. 

6  Atlantic  Phosphate  Co.  v.  Gramin,  114  U.  S.  492, 500. 


$  398  BUYER'S  REMEDIES.  586 

7  Bowser  v.  Birdsell,  49  Mich.  5, 6.  No  obligation  in  Lower  Canada 
to  pay  price  and  afterwards  get  possession  of  goods  from  stranger : 
Prevost  v.  La  Compagnie  etc.  Law  R.  10  App.  Cas.  (M3.  Liability  to 
p-iy  reasonable  worth  of  retained  articles  :  Kirk  v.  Wolf  Manuf.  Co. 
8  N.  E.  Rep.  (111.)  815.  Refusal  to  pay  after  acceptance :  Mackey  v. 
8  wartz,  60  Iowa,  710, 712.  Paying  increased  price  as  precluding  action 
for  breach  of  original  contract :  Rogers  v.  Rogers,  139  Mass.  440,  444. 

\  398.  Damages  for  failure  to  deliver,  —  General  rule. 
Where  the  seller  fails  altogether  to  deliver,  the  com- 
mon remedy  is  by  a  personal  action  against  the  seller 
for  damages  caused  by  his  breach  of  contract ; l  and  the 
measure  of  damages  is,  in  general,  according  to  the  de- 
clared rule  of  England  and  America,2  the  difference  be- 
tween the  price  contracted  for  and  the  market  price 
of  the  goods  at  the  time  when,  and  the  place  where 
delivery  was  due.3 

When  price  paid.  And  when  the  price  of  the  goods 
has  been  paid,  the  measure  of  damages  is  the  entire 
market  price.4 

Nominal  damages.  The  buyer  may  recover  nominal 
damages,  however,  even  if  it  appears  that  the  goods 
could  have  been  bought  for  less  than  the  price  agreed 
on  at  the  time  and  place  of  delivery.5 

Special  damages.  And  one  of  the  exceptions  to  the 
general  rule  is  that  when  the  articles  purchased  are 
bought  for  a  specific  purpose,  and  such  purpose  is  made 
known  to  the  seller  at  the  time  of  the  contract,  there 
may  be  a  recovery  of  special  damages  resulting  from 
the  inability  of  the  purchaser  to  carry  out  such  purpose 
by  reason  of  the  breach  of  contract.6 

Loss  of  profits  on  sub-sale.  Where  the  vendor  knows 
that  the  buyer  has  an  existing  contract  for  resale  at  a 
profit,  and  that  the  purchase  is  expressly  to  fulfill  such 
contract,  the  profits  which  would  accrue  from  such 
sale  would  be  recoverable,  provided  the  buyer  was  un- 
able to  supply  himself  by  going  into  the  market  and 
purchasing  the  same  kind  of  goods.7 


587  BUYER'S  REMEDIES.  §  398 

Cost  of  replacing  goods.  But  in  general,  where  the 
seller  fails  altogether  to  deliver,  the  loss  to  be  made  up 
as  constituting  the  measure  of  damages  is,  as  nearly  as 
practicable,  what  it  must  have  cost  the  buyer  to  go  into 
the  nearest  market,  and  procure  at  retail,  if  necessary, 
the  same  kind  of  chattels,  or  those  nearest  approaching 
them  in  value,  even  though  somewhat  higher  priced, 
for  the  purpose  of  use  or  of  sub-sale,  according  to  the 
natural  or  understood  import  of  the  transaction.8 

Nearest  practicable  market,  etc.  If  there  be  no  market 
price  at  the  precise  place  of  delivery,  where  or  whence 
such  price  is  calculated,  the  basis  of  computation  may 
be  the  nearest  practicable  market,  with  account  taken 
of  the  enhanced  expenses  of  transportation  thereto, 
and  of  analogous  items  of  reasonable  scope.9 

1  2  Schouler  of  Personal  Property,  g  571.    Personal  action  :  See  1 
Abbott's  Law  Diet.  22. 

2  See  citations  in  next  note,  and  Hill  v.  Chipman,  59  Wis.  211, 218 ; 
Johnson  v.  Allen,  78  Ala.  387  ;  56  Am.  Rep.  34,  37  ;  (Juniors  v.  Madden, 
36  La.  An.  425,  426. 

3  2  Schouler  on  Personal  Property,  §  571,  making  following  cita- 
tions :  Barrow  v.  Arnaud,  8  Q.  B.  604,  609 ;  Boorman  v.  Nash,  9  Barn. 


nage,.,      .,..___      ....... _. 

632  ;  Furlong  v.  Polleys,  30  Me.  491 ;  50  Am.  Dec.  635  ;  Gordon  v.  Nor- 
ris,  49  N.  H.  376;  Sedg wick's  Cases  on  Damages,  220;  Bartlett  ?'. 
Blanchard,  13  Gray,  429 ;  Dana  v.  Fiedler,  12  N.  Y.  40 ;  Sedgwick's 
Cases  on  Damages,  220 ;  Parsons  v.  Button,  66  N.  Y.  92  ;  McHose  v. 
Fulmer,  73  Pa.  St.  355  ;  Sedgwick's  Cases  on  Damages,  347  ;  Knibs  v. 
Jones,  44  Md.  396  ;  Crawford  v.  Manuf.  Co.  88  N.  C.  554  ;  Thompson 
v.  Woodruff,  7  Cold.  401 ;  Northrup  v.  C9Ok,  39  Mo.  202  ;  Jemmison  v. 
Gray,  29  Iowa,  537 ;  Bennett's  Benjamin  on  Sales,  \  870  ;  Story  on 
Sales,  \\  430,  448  ;  Sedgwick  on  Damages  (5th  ed.),  289,  340.  Consult, 
also,  Campbell  on  Sales,  377 ;  2  Corbin's  Benjamin  on  Sales,  g  1305,  n. 
2,  p.  1120. 

4  Moses  v.  Basin,  14  Fed.  Rep.  772,  775.     And  see  Anderson  v. 
Reed,  51  N.  Y.  Sup.  Ct.  326. 

5  See  Valpy  v.  Oakeley,  16  Q.  B.  941 ;  Griffiths  v.  Perry,  1  El.  &  E. 
680 ;   Deere  r.  Lewis,  51  111.  254  ;  as  cited,  2  Schouler  on  Personal 
Property,  §  571.    And  consult  Moses  v.  Rasin,  14  Fed.  Rep.  772,  775. 

6  Hill  v.  Chipman,  59  Wis.  211,  218 ;  referring  to  Shepard  v.  Mil- 
waukee Gas  Light  Co.  15  Wis.  318,  327  ;  Richardson  v.  Chynoweth,  26 
Wis.  656;  Chapman  v.  Ingram,  30  Wis.  290;  Candee  v.  West.  Union 
Tel.  Co.  34  Wis.  471  ;  Hammer  v.  Scoenfelder,  47  Wis.  455;  Cockburn 
v.  Ashland  Lumber  Co.  54  Wis.  619,  G26. 


§  399  BUYER'S  REMEDIES.  588 

7  Bell  v.  Reynolds,  78  Ala.  511 ;  56  Am.  Rep.  52, 54, 55  ;  citing,  Mess- 
more  v.  N.  Y.  Shot  and  Lead  Co.  40  N.  Y.  422 ;  Sedgwick's-  Cases  on 
Damages,  402  ;  McHose  v.  Fulmer,  73  Pa.  St.  365 ;  Sedgwick's  Cases 
on  Damages,  347;  Addison  on  Contracts  (Morgan's  ed.),  §  589;  Chi- 
cago Railroad  Co.  v.  Hale,  83  111.  300;  25  Am.  Rep.  403.    English 
doctrines  concerning  sub-contracts  by  buyer :  See  Bennett's  Benja- 
min on  Sales,  §  877  ;  reviewing,  Thol  v.  Henderson,  Law  R.  8  Q.  B.  D. 
457  ;  Hinde  v.  Liddell,  Law  R.  10  Q.  B.  265 ;  12  Eng.  Rep.  296 ;  Borries 
v.  Hutchinson,  18  Com.  B.  N.  S.  445  ;  Sedgwick's  Cases  on  Damages, 
401 ;  Elbinger  Co.  v.  Armstrong,  Law  R.  9  Q.  B.  473 ;  Sedgwick's  Casts 
on  Damages,  350  ;  Hydraulic  Engineering  Co.  v.  McHaffie,  Law  R.  4 
Q.  B.  D.  670 ;  British  Columbia  Saw  Mill  Co.  v.  Nettleship,  Law  R. 
3  Com.  P.  499  ;  37  Law  J.  Com.  P.  235 ;  Sedgwick's  Cases  on  Damages, 
170 ;  Home  v.  Midland  Ry.  Co.  Law  R.  7  Com.  P.  583,  and  Law  R.  8 
Com.  P.  131  ;  Sedgwick's  Cases  on  Damages,  170  ;   Williams  v.  Rey- 
nolds, 6  Best  &  Smith,  495 ;  Dunkirk  Colliery  Co.  v.  Lever,  Law  R.  9 
Ch.  D.  20  ;  41  L.  T.  N.  S.  633 ;  43  L.  T.  N.  S.  706.    And  consult,  Grehert- 
Borgnis  v.  Nugent,  Law  R.  15  Q,  B.  D.  85. 

8  See  2  Schouler  on  Personal  Property,  ?  572;  Hinde  v.  Liddell, 
Law  R.  10  Q.  B.  265  ;  Haskell  v.  Hunter,  23  Mich.  305,  309. 

9  See  2  Schouler  on  Personal  Property,  ?  572  ;  citing,  Haskell  v. 
Hunter,  23  Mich.  305  ;  Bourne  v.  Ashley,  1  Low.  27  ;  Grand  Tower  Co. 
i'.  Phillips,  23  Wall.  471,  479;  Furlong  k  Polleys,  30  Me.  491:  50  Am. 
Dec.  635 ;   Burst  v.  Burton,  47  N.  Y.  167  ;  Pearce  v.  Carter,  3  Houst. 
385  ;  McCormick  v.  Hamilton,  23  Gratt.  561 ;  Sedgwick  on  Damages 
(5th  ed.),  310.    Final  destination  of  goods  coming  from  a  distance: 
See  Heineman  v.  Heard,  4  Thomp.  &  C.  666;  Crawford  v.  Manuf. 
Co.  88  N.  C.  554.    Ascertainment  of  market  price  for  jury :  Sedgwick 
on  Damages  (5th  ed.),  310 ;  Worthen  v.  Wilmot,  30  Vt.  555  ;  Phelps  v. 
McGee,  18  111.  155. 

g  399.  Restrictions  on  recovery.  —  Notice  of  exceptional 
circumstances,  etc.  As  in  general  it  seems  that  the  seller 
must  reasonably  have  apprehended  the  loss  to  have 
followed  his  own  breach,  some  notice  of  exceptional 
circumstances  authorizing  enhanced  damages,  if  any 
existed,  ought  to  have  reached  him  in  season  to  charge 
him  personally,  especially  in  the  case  of  articles  readily 
procurable  in  market.1 

Knowledge  of  sub-contract,  etc.  So  the  damages  actu- 
ally paid  to  a  sub-buyer  for  failure  of  the  sub-sale,  or 
loss  of  profit  by  losing  the  opportunity  of  the  sub-sale, 
are  too  remote  for  a  test,  at  least  in  the  absence  of  special 
knowledge  of  the  essential  facts  on  the  seller's  part ; 2 
and  even  though  it  was  known  that  the  buyer  had  pur- 
chased the  goods  for  the  purposes  of  sub-sale,  yet  it  has 
been  held  that  damages  ought  not  to  be  assessed  so  as 
to  include  the  loss  of  profit  on  the  sub-sale,  where  the 


589  BUYER'S  REMEDIES.  §  400 

sub-contract  was  not  known  to  the  seller  at  the  time  of 
sale.3 

1  Compare  Williams  v.  Keynolds,  6  Best  &  Smith,  495;  Hanrlall 
v.  Roper,  El.  B.  &  K.  84 ;  Fox  v.  Harding,  7  Cush.  516.    See,  also, 
Home  v.  Midland  R.  R.  Co.  Law  R.  7  Com.  P.  583,  and  Law  R.  8  Com. 
P.  131;  Sedg-vvick's  Cases  on  Damages,  196.    Source  of  paragraph:  2 
Schooler  on  Personal  Property,  2  572.    And  compare  Story  on  Sales, 
2412.    Seller's  supposition  of  different  and  more  obvious  purpose; ; 
loss  of  profits  not  recoverable:  Cory  v.  Thames  Iron  \Vo"ks  Co.  Law 
R.  3  Q,  E. .181.    Parol  evidence  of  special  circumstances:   Brady  v. 
Oastler,  3  Hurl.  &,  C.  112.    Matters  incidental  to  procuring  the  tx\r- 

gain:  Stevens  v.  Lyford,  7  N.  II.  360.    And  see  Crawford  v.  Manuf. 
o.  88  N.  C.  554. 

2  See  Borries  v.  Hutchinson,  18  Com.  B.  N.  S.  415;  Sedgwick's 
Cases  on  Damages,  SO.) ;  also,  Pa.  R.  R.  Co.  v.  Titusville  etc.  Co.  71  Pa. 
St.  350  ;  Wetmore  v.  Patterson,  45  Mich.  439. 

3  Tho!  v.  Henderson,  Law  R.  8  Q.  B.  D.  457.    But  compare  Cock- 
burn  v.  Ashburn  Lumber  Co.  54  Wis.  619.    New  York  rule :  Compare 
Messmore  v.  N.  Y.  Shot  Co.  40  N.  Y.  422 ;  Sedgwick's  Cases  on  Dam- 
ages, 302  ;  Booth  v.  Spnyten  Duyvil  Mill  Co.  60  N.  Y.  487 ;  Sedgwick's 
Cases  on  Damages,  331.    Source  of  paragraph:  2  Schouler  on  Per- 
sonal Property,  \  572. 

§  400.  Suit  for  failure  to  deliver.  —  Prerequisites  of 
demand,  o'fery  etc.  Where  no  time  of  delivery  was 
expressly  or  by  implication  fixed  in  the  contract,  the 
buyer  should,  in  general,  demand  the  goods  before 
bringing  suit,  unless  a  demand  would  be  useless  by 
reason  of  the  seller's  waiver,  disability  to  comply,  etc.1 
In  general,  the  buyer  must  offer  payment  before  he  can 
sue  for  non-delivery,  unless  credit  was  given  or  pay^ 
ment  waived ; 2  but  a  formal  tender  of  payment  is  not 
a  condition  precedent,  though  the  buyer  must  be  ready 
and  willing  to  pay.3 

Pleadings,  evidence,  etc.  In  a  declaration  in  a  suit  by 
the  purchaser  against  the  seller  for  breach  of  a  contract, 
whereby  the  purchaser  engages  to  deliver  a  designated 
number  of  pieces  of  timber  as  fast  as  water  will  permit, 
and  not  later  than  a  specified  date,  it  is  essential  to 
allege  that  the  water  was  such  as  to  permit  the  delivery, 
as  this  is  evidently  a  condition  of  the  contract  to  deliver.4 

1    See  2  Schouler  on  Personal  Property,  575  ;  Story  on  Sales,  ?  453  ; 
Wire  v.  Foster,  62  Iowa,  114,  116.    Like  doctrine  where  delivery  on 
request  contracted  for:  oee  Bennett's  Benjamin  on  Sales,  g  878; 
NEWMAKK  SALES.  — 5O. 


§  401.  BUYER'S  REMEDIES.  590 

citing,  Bach  v.  Owen,  5  Term  Rep.  409  ;  Radford  v.  Smith,  3  Mees.  & 
W.  2-34  ;  Bowdell  v.  Parsons,  10  East,  359  ;  Amory  v.  Broclrick,  5  Barn. 
<fe  Aid.  712.  On  whom  demand  to  be  made  after  death  of  party 
giving  stock  options  :  Prince  v,  Robinson's  Adm'rs.  15  The  Reporter, 
1G3. 

2  See  Parker  v.  Pettlt,  43  N.  J.  L.  512,  516  ;  Pinkus  v.  Hamaker,  11 
Ser?.  &  R.  200  ;  Keeler  r.  Schmertz,  4fi  Pa.  St.  i:'.5,  i::a  ;  Mowry  ?'.  Kirk, 
19  Ohio  S^.  375,  383 ;  Simmons  v.  Green,  35  Ohio  St.  104 ;  Leonard  v. 
Davis,  1  Black,  476,  483  ;  Metz  v.  Albrecht,  52  111.  491 ;  Wire  v.  Foster, 
62  Iowa,  114. 

3  See  West  v.  Platt,  127  Mass.  367,  370  ;  Bear  v.  Hornish,  3  Brewst. 
113  ;  Robison  v.  Tyson,  46  Pa.  St.  286,  2i)2  ;  Thompson  v.  Warner,  31 
Kan.  533.    Sources  of  paragraph ;  2  Corbin's  Benjamin  on  Sales,  §  l'T5, 
n.  l,and§897,n.  23;  2  Schouler  on  Personal  Property,  §575;  Thompson 
v.  Warner,  31  Kan.  533  ;  Wire  v.  Foster,  62  Iowa,  114. 

4  Stokes  v.  Barss,  18  Fla.  656,  668.     Admissible  evidence  under 
general  denial :  Davis  v.  McCrocklin,  34  Kan.  218, 219, 221 ;  8  Pac.  Rep. 
196.    Repeated  failures  to  make  delivery  held  to  authorize  a  rescission 
of  the  contract :  Ballman  v.  Burt,  17  The  Reporter  (Md.)  749.    Rern  c- 
dies  of  buyer  who  has  paid  price :  See  Nash  v.  Towne,  5  Wall.  683  ; 
Cleveland  v.  Sterrett,  70  Pa.  St.  204,  209  ;  Cofield  v.  Clark,  2  Colo.  101 : 
Hill  ?'.  Smith,  32  Vt.  403  ;  Boutell  v.  Warne,  62  Mo.  350, 353.    Sources  of 
these  citations:   2  Schouler  on  Personal  Property,  §  573;  Bennett's 
Benjamin  on  Sales,  §  870,  n.  6;  2  Corbin's  Benjamin  on  Salos,  §  1H05, 
n.  1,  p.  1120.    And  see  Sedgwick  on  Damages  (5th  ed.),  pp.  291, 292,  et 
seq.  304. 

§  401.  Where  title  in  buyer.  —  Remedies  as  owner. 
Where  the  contract  which  has  been  broken  by  the 
vendor  is  one  in  which  the  property  has  passed  to  the 
buyer,  there  arise  in  the  latter  the  rights  of  an  owner, 
as  he  has  not  only  the  title  but  also  the  right  of  posses- 
sion of  the  goods,  defeasible  only  on  his  own  default  in 
complying  with  his  duty  of  accepting  and  paying  for 
them.1  Under  such  circumstances  the  buyer  has  not 
only  the  right  of  action  for  damages,  which  is  common 
to  all  parties  to  contracts  of  every  kind,  and  was  for- 
merly the  only  remedy  for  such  breach  at  common 
law,  but  he  has  also  the  right  to  enforce  delivery  of  the 
specific  chattel  sold,  and  may  maintain  trover  on  the 
vendor's  refusal  to  deliver.2 

Specific  performance.  In  regard  to  specific  perform- 
ance of  contracts  for  the  sale  and  delivery  of  personal 
property,  it  is  declared  that  there  are  many  exceptions 
to  the  general  rule  denying  this  remedy,  founded  prin- 
cipally upon  the  inadequacy  of  the  remedy  in  damages 


591  BUYER'S  REMEDIES.  \  402 

at  common  law  in  the  particular  case,  or  upon  the 
special  and  peculiar  nature  and  value  of  the  subject- 
matter.3  And  it  is  more  precisely  stated  that  the  buyer 
has  been  allowed  to  resort  to  the  equitable  remedy  of 
specific  performance  where  the  subject-matter  of  the 
sale  was  an  incorporeal  chattel,  such  as  shares  of  stock, 
or  something  rare  and  of  marked  intrinsic  value,  if 
corporeal,  as  a  statue,  a  painting,  or  an  antique  vase, 
and  the  buyer  with  the  right  of  possession  in  himself 
could  not  be  made  whole  by  giving  him  damages.4 

1  See  Bennett's  Benjamin  on  Sales,  \  883. 

2  Bennett's  Benjamin  on  Sales,  §  834.    And  see  2  Schoulei  on 
Personal  Property,  §  576.    Specific  performance  of  contracts  for  sale 
of  personalty :  See  succeeding  subdivision  of  section.    Trover  for 
conversion  of  goods :  See  Campbell  on  Sales,  383  ;  Story  on  Sales, 
£-]]3  ;  Bennett's  Benjamin  on  Sales,  §886;  2  Corbin's  Benjamin  on 
Sales,  §  1341,  n,  15 ;  2  Schouler  on  Personal  Property,  §  577,  and  follow- 
ing cases  cited  by  these  writers ;  Cliinery  v.  Viall,  5  Hurl.  &  N.  2.Q3  ;  29 
Law  J.  Ex.  280 ;  Sedgwiek's  Cases  on  Damages,  631 ;  Gil  lard  v.  Brittain, 

8  Mees.  &  W.  575  ;  France  v.  Gaudet,  Law  R.  6  Q,.  B.  19!) ;  Johnson  i\ 
Lancashire  etc.  By.  Co.  Law  R.  3  C.  P.  D.  499  ;  Lord  v   Pri^e,  Law  R. 

9  Ex.  54 ;  Johnson  v.  Dickenson,  78  N.  Y.  42  ;  Bowser  v.  Birdsell,  49 
I,Iich.  5. 

3  Equitable  Gaslight  Co.  v.  Baltimore  Coal  Tar  etc.  Co.  63  Md. 
285,  299. 

4  2  Schouler  on  Personal  Property,  §  576 ;  citing,  2  Kent  Com.  487; 
Story  on  Sales,  §  413.    And  see  Bennett's  Benjamin  on  Sales,  §  884, 
n.  w  ;  citing,  Falcke  v.  Gray,  4  Drew.  653  ;  29  Law  J.  Ch.  28 ;  Pusey  v, 
Pusey,  1  Vern.  273  ;  Binney  v,  Annan,  107  Mass.  94  ;  Somerby  v.  Bun-, 
tin,  118  Mass,  287  ;  Corbin  v.  Tracy  34  Conn.  325  ,  Noyes  v.  Marsh,  123 
Mass.  286  ;  Fell's  Appeal  91  Pa.  St.  434  ;  Ferguson  r.  Paschall,  11  Mo. 
267  '  Barter  v.  Gordon,  2  Hill  Eq.  121 ;  Young  v.  Burton,  1  McMnll, 
Eq.  £55.    Consult,  also,  Equitable  Gas  Light  Co,  v,  Baltimore  Coal 
T;ir  etc.  Co.  n  Md.  285,289  ;  citing,  Pomeroy  on  Specific  Performance, 
1 115,  p.  20  ;  Buxton  v.  Lister,  3  Atk.  382. 

g  402.  Delay  in  delivery.  —  Choice  of  remedies.  Where 
the  delivery  is  unreasonably  late,  the  buyer  upon  a 
tender  of  the  goods  may  either  refuse  them,  or  receive 
them  under  objection  and  claim  damages  resulting  from 
the  delay.1 

Where  delivery  in  instalments.  Where  the  contract  is 
for  the  sale  of  personal  property,  to  be  delivered  in  in- 
stalments at  fixed  times,  the  failure  to  deliver  any  in- 
stalment at  the  time  agreed  upon  is  a  breach  of  the 


§  403  BUYER'S  REMEDIES,  592 

contract,  for  which  the  purchaser  could  doubtless  main- 
tain an  action  without  waiting  until  the  time  for  the 
delivery  of  the  last  instalment  had  passed.2  And  upon 
a  failure  to  deliver  two  or  more  or  all  of  the  instalments, 
each  of  the  failures  constitutes  a  separate  and  distinct 
breach,  and  the  measure  of  damages  is  the  sum  of  the 
differences  between  the  contract  and  the  market  prices 
of  the  quantity  of  each  instalment  not  delivered  at  the 
respective  times  and  places  of  delivery.3 

1  See  2  Schouler  on  Personal  Property,  g  591 ;  Story  on  Sales, 
£  450  ;  Merrimack  Manuf.  Co.  v  Quintard,  107  Mass.  1-7.    And  consult 
Phillips  v.  Taylor,  4  N.  E.  Rep.  (N.  Y.)  727  ;  S.  C.  below,  49  N.  Y. 
Sup.  Ct.  318.    Measure  of  damages  where  delay  caused  by  persist- 
ence in  refusal  to  deliver,  but  thore  was  ultimate  delivery  and  accept- 
ance: Boomerv.  Fhigler,5l  N.  Y.Snp.  Ct.211.    Damages  for  delay  in 
delivery  of  chattel,  like  ship  or  steam-engine,  from  whose  use  profits 
derivable :  See  2  Schouler  on  Personal  Property,  §  572. 

2  Hill  v.  Chipman,  59  Wis.  211,  218. 

3  Johnson  v.  Allen,  73  Ala.  387 ;  56  Am.  Rep.  34,  37     And  consult  1 
Bedgwick  on  Damages  (7th  ed.),  558,  n.  b  ;  Missouri  Furnace  Co.  v. 
Cochran,  3  Fed.  Rep.  403  ;  Brown  v.  Muller,  Law  R.  7  Ex.  319 ;  3  Eng. 
Rep.  429 ;  Roper  v.  Johnson,  Law  R.  8  Com.  P.  167  ;  Sedgwick's  Cases 
on  Damages,  836;  Ex  parte  Llansamlet  Tin  Plate  Co.  Law  R.  10  Eq. 
155  ,  6  Eng.  Rep.  68!) ;  Frost  v.  Knight,  Law  R.  7  Ex.  Ill  ;  Bergheim  r. 
Blaenavon  Iron  Co.  Law  R.  10  Q.  B.  319  ;  13  Er-g.  Rep.  254  ;  Elbinger 
Actien-Gesellschaft  v.  Armstrong,  Law  R.  9  Q.  B.  473;  Sedgwick's 
C°s^s  on  Damages  3-"0  ;  Burtis  v.  Thompson,  42  N.  Y.  246  ;  Shreve  v. 
Brewton,  51  Pa.  St.'  176. 

§  403.  Divergence  of  goods  from  contract. —  Quality  of 
unascertained  goods  It  is  laid  down  that  where  goods 
of  a  specified  quality  not  in  existence  or  ascertained 
are  sold,  and  the  seller  undertakes  to  ship  them  to  a 
distant  buyer,  and  when  they  are  made  or  ascertained, 
delivers  them  to  a  carrier  for  the  buyer,  the  latter  has 
the  right,  if  on  their  arrival  they  are  not  of  the  quality 
required  by  the  contract,  to  reject  them  and  rescind  the 
sale,  and  if  he  has  paid  for  them,  to  recover  back  the 
price  in  a  suit  against  the  seller.1 

Variance  from  description.  So  it  is  said  to  be  a  pro- 
position everywhere  admitted  to  be  law,  that  if  one  who 
has  not  seen  them  orders  goods  of  a  certain  description, 


593  BUYER'S  REMEDIES.  $  403 

at  a  certain  price,  and  the  goods  do  not  answer  the  de- 
scription, he  may  return  them  or  offer  to  return  them 
within  a  certain  time.2 

Breach  of  warranty.  Upon  the  discovery  of  a  breach 
of  warranty,  the  buyer  has  the  election  either  to  rescind 
the  contract  by  returning  the  property,  or  to  sue  on  the 
warranty  for  the  recovery  of  damages.3  But  it  has  been 
declared  that  if  he  elects  to  rescind  the  contract,  the  law 
requires  that  he  should  make  the  election  at  once,  or  at 
least  within  a  reasonable  time  after  he  discovers  the 
breach,  instead  of  continuing  to  use  the  property  for  a 
year  or  more  afterwards.4 

Objections  to  articles.  The  rule  that  one  cannot  re- 
scind a  contract  in  part,  and  affirm  it  in  part,  does  not 
apply  to  a  case  which  is  not  one  of  rescission  at  all,  but 
where  the  purchaser  refuses  to  accept  an  article  which 
varies  from  the  description  of  it  contained  in  an  item- 
ized bill  of  sale  of  vehicles,  and  sues  the  vendor  for  f ailr 
ure  to  fulfill  the  contract  of  sale.5 

1  Pope  v.  Allis,  115  IT.  S.  303,  372 ;  6  Sup.  Ct.  Reporter,  60, 72,  with 
note,  73;  citing,  Norrington  v.  Wright,  115  U.  S.  188  ;  and  referring  to 
Filley  v.  Pope,  115  U.  S.  213,  and  various  cases  which  treat  descriptive 
statements  as  conditions. 


An 

Me 

15)  i\.    vv.   ±tejj.  ooi».     AIIU  consult    weyoncu  v.    narns,  .11   js^uri.  y.J ; 

$  352,  discussing  generally,  REMEDIES  FOR  BREACH  OF  WARRANTY. 

4  Upton  Manuf.  Co.  v.  Huiske,  29  N.  W.  Rep.  621,  623,  n.  624. 
And  see  Paulson  ?'.  Osborne,  27  N.  W.  Rep.  (Minn.)  206.     Compare 
Frank  v.  Hollander,  35  La.  An.  1582. 

5  Lampson  ?>.  Cummings,  52  Mich.  492, 4D7.    Compare  Argensinger 
v.  Cline,  28  N.  W.  Rep.  435. 


§  404  BESALE.  594 


CHAPTER  XXXVI. 

RESALE. 

\  404.  Right  of  resale. 
\  405.  Mode  of  resale. 
2  406.  Recovery  after  resale. 

§  404.  Right  of  resale.  —  In  general.  K  a  vendee  of 
goods  unreasonably  refuses  to  accept  the  goods,  the 
vendee  is  under  no  obligation  to  allow  them  to  perish 
on  his  hands,  or  to  become  reduced  in  value ; 1  but  he 
may  sell  them  at  auction,2  and  hold  the  buyer  respon- 
sible for  the  difference  between  the  price  which  the 
goods  actually  brought  and  the  price  which  the  pur- 
chaser agreed  to  give.3 

Election  of  seller.  And  it  has  been  considered  to  bo  at 
the  election  of  the  seller  whether  he  will  resell,  or  treat 
the  property  as  the  vendee's,  and  sue  for  the  entire 
contract  price.4 

English  doctrine.  But  in  England,  a  resale  in  the 
absence  of  an  express  reservation  thereof,  is  a  technical 
breach  of  contract  and  ground  for  at  least  nominal 
damages,  though  it  does  not  rescind  the  sale,  and  is  not 
so  tortious  that  the  buyer  can  recover  back  any  deposit 
of  the  price,  or  resist  payment  of  any  balance  thereof, 
or  sue  the  vendor  in  trover  except  for  a  premature  re- 
sale 5  before  default.6 

1  Van  Horn  v.  Rucker,  33  Me.  391,  392  ;  84  Am.  Dec.  52.    And  see 
Maclean  v.  Dunn,  4  Bing.  722  ;  Langdell's  Cases  on  Sales,  390,  394. 

2  Compare  £  405,  on  MODE  OF  RESALE. 

3  Van  Horn  v.  Rucker,  33  Mo.  391,  392  ;  84  Am.  Dec.  52.    And  see  2 
Kent  Com.  505 ;  Atwood  v.  Lucas,  53  Me.  508,  511 ;  89  Am.  Dec.  713  >* 
Crooks  v.  Moore,  1  Sand.  297,  302,  303  ;  Sands  v.  Taylor,  5  Johns.  3055 
Lewis  v.  Greider,  49  Barb.  606  ;  Bogart  v.  O'Regan,  1  Smith,  E.  D.  590> 
592 ;  Adams  i\  Mirick,  cited,  5  Serg.  &  R.  32  ;  Kosenbaums  v.  Weeden, 
18  Gratt.  785,  790-792  ;  White  v.  Kearney,  9  Rob.  (La.)  405, 501, 502  ;  Judd 
etc.  Oil  Co.  v.  Kearney,  14  La.  An.  352  ;  Williams  v.  Godwin,  4  Sneed, 


595  RESALE.  §  405 

557,  558,  559  ;  Johnson  v.  Powell,  9  Ind.  566  ;  Saladin  ?>.  Mitchell,  45  111. 
85.  Compare  West  v.  Cunningham,  9  Port.  104,  107 ;  Schmertz  v. 
Dwyer,  53  Pa.  St.  335,  339.  No  recovery  where  refusal  to  accept  goods 
which  the  evidence  indicates  were  not  merchantable  or  according  to 
samples  :  See  Duncan  v.  Holt,  21  La.  An.  235.  Resale  by  buyer :  See 
Barnett  v.  Terry,  42  Ga.  283,  289 ;  Youghiogheny  Iron  Co.  v.  Smith,  66 
Pa.  St.  340,344;  Walker  v.  Gooch,  10  Biss.  15'J,  163;  Bach  v.  Levy,  50 
N.  Y.  Sup.  Ct.  519,  522  ;  S.  C.  5  N.  E.  Rep.  345. 

4  Hunter  v.  Wetsell,  84  N.  Y.  540,  555.    Waiver  of  right  to  either 
course  by  not  setting  apart  the  article  bought  as  the  property  of  the 
rejecting  buyer:  Ganson  v.  Madigan,  13  Wis.  67;   15  Wis.  144,  151. 
Resale  without  buyer's  stipulation  or  consent :    O'Brien  v.  Jones, 
47  N.  Y.  Sup.   Ct.  67,  75.    Seller's  choice  of  remedies:   Dunstan  v. 
McAndrew,  44  N.  Y.  72,  78  ;  Hayden  v.  Demets,  53  N.  Y.  426 ;  2  Kent 
Com.  504  ;  1  Sedgwick  on  Damages  (7th  ed.).  596,  n.  a.    And  see  Gordon 
v.  Norris,  49  N.  H.  376,  383  ;  Haines  ?>.  Tucker,  50  N.  H.  307,  313  ;  Whit- 
ney v.  Boardman,  118  Mass.  242-248;  Schultz  v.  Bradley,  4  Daly,  29, 
36  ;  Barr  v.  Logan,  5  Har.  (Del.)  52,  55  ;  Camp  v.  Hamlin,  55  Ga.  259  ; 
Bell  ?'.  Offutt,  10  Bush,  632,  639  ;  Shawhan  v.  Van  Nest,  25  Ohio  St.  4!X), 
499 ;  15  Am.  Law  Reg.  N.  S.  153,  160 ;  Rickey  v.  Tenbroeck,  63  Mo. 
567. 

5  In  this  country  it  has  been  held  that  on  a  premature  resale,  the 
buyer  can  recover  in  trover  only  the  amount  of  his  part  payment, 
without  costs,  after  refusing  to  receive  it  back  :  Bowser  v.  Birdsell, 
49  Mich.  5. 

6  See  Maclean  v.  Dunn,  4  Bing.  722;  Langdell's  Cases  on  Sales, 
390,  394  :  Stephen  v.  Wilkinson, 2  Barn.  &  Adol.  320  ;  Gillard v.  Brittain, 
8  Mees.  &  W.  575  ;  Page  r.  Cowasjee,  Law  R.  1  P.  C.  127,  145  ;  Lamond 
i>.  Davall,  9  Q.  B.  1030  ;  Chinery  v.  Viall,  5  Hurl.  &  N.  288  ;  Martindale 
v.  Smith,  1  Q.  B.  395  ;  Ogg  v.  Shuter,  Law  R.  1  C.  P.  D.  347;  15  Eng. 
Rep.  231 ;  Valpy  v.  Oakeley,  16  Q.  B.  491 ;  Griffiths  v.  Perry,  1  El.  &  E. 
680. 

§  405.  Mode  of  resale.  —  In  general.  There  is  no  rule 
of  law  which  requires  resales,  made  by  the  seller  in  case 
of  the  purchaser's  failure  to  take  and  pay  for  the  articles 
sold,  to  be  made  at  auction,  or  in  any  particular  mode.1 
But  the  seller  may  sell  the  article  which  the  buyer  re- 
fuses to  receive,  at  private  sale,  through  a  broker  or  in 
any  other  reasonable  manner  sanctioned  by  usage  or 
custom,  and  best  calculated  to  produce  the  value  of  the 
goods.2 

Restrictions  on  seller.  And  all  that  is  required  of  the 
seller,  if  he  elects  to  resell,  is  that  he  should  act  with 
reasonable  care  and  diligence,  such  as  would  be  re- 
quired from  any  other  agent  of  the  owner,  put  in  pos- 
session of  the  goods,  with  instructions  to  sell  them  to 
tbe  best  advantage.3 


\  405  KESALE.  596 

Place  of  resale.  If  a  sale  cannot  be  made  to  advantage 
in  the  place  of  delivery  fixed  by  the  contract,  the  seller 
should  go  where  he  can  get  the  best  price  and  readiest 
sale,  not  out  of  the  usual  course  in  marketing  such 
property.4 

Time  of  resale.  It  is  sufficient  if  the  resale  be  made 
within  a  reasonable  time  after  rejection  ; 5  and  notice  that 
goods  would  not  be  received  or  paid  for  does  not  oblige 
the  seller  to  resell  before  the  day  fixed  for  delivery.6 
But  when  the  property  is  kept  after  the  buyer's  default 
in  order  to  profit  by  a  rise  in  the  market,  the  seller 
cannot  charge  the  expense  of  keeping  it  to  the  buyer.7 

Notice.  In  order  to  entitle  the  vendor  to  proceed  by 
resale,  instead  of  by  rescission  or  by  action  for  the 
whole  price,  he  must  manifest  his  election  by  pre- 
liminary notice  of  his  intention  to  sell,  stating  in  terms 
or  effect  that  he  will  assert  his  right  of  resale,  and  bind 
the  buyer  by  the  price  obtained  and  hold  him  for  the 
loss  sustained.8  But  it  is  now  generally  assumed  that 
no  notice  of  the  time  and  place  of  the  resale  itself  is 
necessary,  in  the  absence  of  special  stipulation  or  cir- 
cumstances, where  the  extent  of  the  vendee's  liability 
is  not  to  be  materially  decided  by  the  price  obtained.9 

1  Crooks  r.  Moore,  1  Sand.  297.    But  resale  at  auction  customary : 
2  Ken  t  Com.  504 ;  Sands  v.  Taylor,  5  Johns.  395.    Justified  where  goods 
perishable,  expensive  to  keep,  or  likely  to  go  out  of  season  :   Camp 
v.  Hamlm,  55  Ga.  259.    And  see  Ullman  v.  Kent,  60  111.  271.    Account- 
ing for  conduct  and  proceeds  of  auction :  Camp  v.  Hamlin,  55  Ga. 
25  i.    And  see  Smith  v.  Pettee,  70  N.  Y.  13, 18  ;  Brownlee  v.  Bolton,  44 
Mich.  213;  Knowlton  v.  Banlgan,  51  N.  Y.  Sup.  Ct.  521,  527.    Title 
through  resale  at  auction :  O'Brien  v.  Jones,  47  N.  Y.  67,  75,  76. 

2  Crooks  v.  Moore,  1  Sand.  297.    And  see  Haines  v.  Tucker,  50 
N.  H.  307,  313  ;  Pollen  v.  Le  Hoy,  30  N.  Y.  549. 

3  See  Dunstan  v.  McAndrew,  44  N.  Y.  72 ;  Bagley  v.  Findlay,  82 
III.  524.    And  consult  White  r.  Kearney,  2  La.  An.  641.    Seller  directly 
or  indirectly  buying  in  goods:  Judd  etc.  Oil  Co.  v.  Kearney,  14  La. 
An.  352.    And  compare  Cullen  v.  Blmm,  37  Ohio  St.  236,  238. 

4  Lewis  v.  Grelder,  49  Barb.  606.    And  see  McGibbon  v.  Schlesinger, 
18  Hun,  225.    But  compare  Chapman  v.  Ingram,  30  Wis.  290,  295; 
Bickey  v.  Tenbroeck,  63  3Io.  563,  567. 

5  Smith  t».  Pettee,  70  "N".  Y.  13, 18.    And  see  Linden  •?>.  Eldred,  49 
Wis.  305,  313, 314  ;  Bosenbaum  v.  Weeden,  18  Gratt,  785, 797.    Compare 


597  RESALE.  I  406 

Salarlin  v.  Mitchell,  45  111.  79,  85,  86.    And  see  Tilt  v.  La  Salle  Silk  Co. 
5  Daly,  19,  26,  27. 

6  Kadish  v.  Young,  108  111.  170  ;  48  Am.  Hep.  548,  549.    When  seller 
held  to  have  waited  a  reasonable  time  :  Bogart  v.  O'Rogan,  1  Smith, 
E.  D.  590,  592.    Compare  Crooks  v.  Moore,  1  Sand.  293,  303. 

7  Thurman  v.  Wilson,  7  111.  312,  314.    Effect  of  too  great  delay  in 
making  resale:  Pickering  v.  Bardwell,  21  Wis.  562,  566  ;  Brow  alee  v. 
Bolton,  44  Mich.  218,  220. 

8  Holland  v.  Kea, 48  Mich.  218, 224.    And  see  Fancher  v.  Goodman, 
29  Barb.  315  ;  Redman  v.  Smock,  28  Ind.  365,  370.    Consult,  also,  Gran- 
berry  v.  Frierson,  2  Baxt.  326.    Compare  Ashbrook  v.  Kite,  9  Ohio  St. 
357.    Presumption  of  rescission :  See  Sloane  v.  Van  Wyck,  4  Abb. 
ST.  Y.  App.  250.    Sufficiency  of  commencement  of  action  for  breach 
of  contract  in  failing  to  take  the  goods  :  Saladin  v.  Mitchell,  45  111.  79, 
85.    Sufficiency  of  one  day's  notice :  Crooks  v.  Moore,  1  Sand.  297. 

9  Holland  v.  Rea,  48  Mich.  218.    And  see  Rosenbaums  v.  Weeden, 
18  Gratt.  785;  Lewis  v.  Greider,  49  Barb.  606;  Hickock  v.  Hoyt,  JJ3 
Conn.  553,  558.    Consult,  also,  Pollen  v.  Le  Roy,  30  N.  Y.  54:),  556  ; 
Gaskell  v.  Morris,  7  Watts  &  S.  32 ;  West  v.  Cunningham,  9  Port.  104, 
107 ;  Hughes  v.  United  States,  4  Ct.  of  Cl.  64  ;  George  v.  Kimball,  14 
Up.  Can.  Q.  B.  514.    Notice  of  public  sale  held  sufficient:  Linden  v. 
Eldred,  49  Wis.  305,  315.    Failure  to  give  notice  held  not  injurious: 
Ball  v.  Campbell,  30  Kan.  177. 

\  406.  Eecovery  after  resale. —  Ordinary  view.  After 
a  resale  the  seller  may  ordinarily  recover  the  difference 
between  the  contract  price  and  the  net  proceeds  of  the 
resale,  exclusive  of  expenses.1 

Special  view.  But  some  of  the  cases  hold  that  a  re- 
sale, though  the  usual,  is  not  the  only  or  decisive  mode 
of  ascertaining  damages,  and  that,  however  fair,  it  does 
not  exclude  other  evidence  of  the  market  price.2 

Goods  not  separately  resold,  etc.  And  where  the 
goods  cannot  be  separately  resold,  but  are  mingled  with 
others,  the  sellers  should  account  for  the  highest  price 
obtained.3 

1  See  Crooks  v.  Moore,  1  Sand.  297;  Whitney  v.  Boardman,  118 
Mass.  242,  248.    And  consult  Springer  v.  Berry,  47  Me.  330, 339  ;  1  Serlg- 
wick  on  Damages  (7th  ed.),  593,  n.  &,  and  cases  cited.    Commissio:  s 
allowed   seller  where  found   that  buyers  had  no  right  to  return 
goods:  Stone  i>.  Browning,  49  Barb.  244,  249.    Count  for  goods  bar- 
gained and  sold  not  maintainable  :  Hass  v.  Thompkins,  2  Pa.  L.  J.  17. 
And  see  Hagedorn  v.  Laing,  6  Taunt.  162, 166. 

2  McCombs  v.  McKennan,  2  Watts  &  S.  216,  219 ;  Andrews  v. 
Hoover,  8  Watts,  239 ;  Girard  v.  Taggart,  5  Serg.  <fe  R.  19 ;  West  r. 
Cunningham,  9  Port.  104,  107.    And  compare  Bach  v.  Levy,  5  N.  E. 
Rep.  (N.  Y.)  345  ;  Bigelow  v.  Legg,  6  N.  E.  Rep.  (N.  Y.)  107. 

3  Cousinery  v.  Pearsall,  40  N.  Y.  Sup.  Ct.  113,  117.    Liability  of 
seller  where  better  price  obtained  than  that  contracted  for :  Gran- 
berry  v.  Frierson,  2  Baxt.  326. 


§  407  SELLER'S  LIEN. 


CHAPTER  XXXVII. 
SELLER'S  LIEN. 

g  407.  In  general. 

g  408.  Withholding  or  countermanding  delivery. 

2  400.  Giving  credit. 

\  410.  Sub-sale  and  estoppel. 

\  407.  In  general.—  Where  credit  not  given,  etc.  A 
seller  of  chattels  has,  until  delivery,  a  lien  upon  them 
for  the  price,  if  no  credit  be  stipulated.1  And  where 
goods  are  to  be  paid  for  on  delivery,  but  on  their  deliv- 
ery the  vendee  refuses  to  pay  for  them,  the  vendee  has 
a  lien  for  the  price,  and  may  resume  possession  of  the 
goods.2 

Extinction  by  unconditional  surrender  of  possession. 
But  in  general,  the  right  of  lien  depends  upon  the  pos- 
session, and  to  maintain  it  a  vendor  must  have  the 
actual  or  constructive  possession  of  the  goods,3  so  that 
there  is  no  lien  for  the  purchase  money  of  goods  with 
the  possession  of  which  the  vendor  parts  absolutely 
and  unconditionally;4  and  the  principle  that  the  sur- 
render of  possession  is  the  extinction  of  a  lien,  applies 
especially  when  the  surrender  is  to  a  purchaser  from 
the  vendor  against  whom  the  lien  exists  in  favor  of  his 
factor.5  So  on  a  sale  of  goods,  even  for  cash,  if  the  pos- 
session is  delivered  unconditionally  to  the  purchaser, 
without  any  fraud  on  his  part,  the  title  at  once  vests  in 
him,  although  the  purchase  money  is  paid,  and  the 
creditor  can  assert  no  lien  on  the  goods  for  the  unpaid 
purchase  money.6 

Constructive  delivery.  And  it  is  generally  regarded 
as  immaterial,  in  regard  to  the  extinction  of  the  lien, 
•whether  the  delivery  be  actual  or  constructive,7  so  that 


599  SELLER'S  LIEN.  ?  407 

a  delivery  of  goods  to  a  common  carrier,  to  be  by  him 
transported  to  the  buyer,  is  held  a  delivery  to  the  buyer 
such  as  divests  the  seller  of  his  lien.8 

Reservation  of  lien.  Liens  may  be  created  by  con- 
tract, which  may  stipulate  the  mode  in  which  the  lien 
shall  be  effectuated,  continued,  or  rescinded.9  Nor  is 
there  any  rule  of  law  to  defeat  a  stipulation  in  a  con- 
tract of  sale  of  personal  property,  that  the  vendor  shall 
retain  a  lien  until  payment,10  even  after  delivery  of 
the  goods.11 

Notice.  There  are  statutory  enactments  in  some  of 
the  States  making  provision  concerning  notice  of  a 
seller's  lien,  affecting  subsequent  purchasers  and  cred- 
itors, by  means  of  instruments,  witnessed  or  recorded, 
etc.12 

1  See  Clark  v.  Draper,  19  N.  H.  419,  421  ;  Parks  v.  Hall,  2  Pick.  206, 
211  ;  Arnold  v.  Delano,  4  Gush.  33  ;  50  Am.  Dec.  754,  756.    And  consult 
Barrett  v.  Pritchard,  2  Pick.  512,  515  ;  Haskins  v.  Warren,  115  Mass. 
514,  533;  Milliken  v.  Warren,  57  Me.  46,50.    But  compare  Beam  v. 
Blanton,  3  Ired.  Eq.  59,  62.    Nature  of  this  lien  :  Arnold  v.  Delano.  4 
Cush.  33  ;  50  Am.  Dec.  754.    And  see  White  v.  Welsh,  38  Pa.  St.  3<J6, 
420  ;  Griffiths  v.  Perry,  1  El.  &  E.  680  ;  McEwan  v.  Smith,  2  H.  L.  Cas. 
809,  328  ;  Dodsley  v.  Varley,  12  Ad.  &  E.  6:!2,  634  ;  Langdell's  Cases  on 
Sales,  155.    A  tender  of  the  price,  even  if  not  accepted,  has  been  held 
to  put  an  end  to  the  lien  upon  the  goods  sold  :  Martindale  v.  Smith, 
1  Q.  B.  389,  395,  396.    And  see  Dempsey  v.  Carson,  11  Up.  Can.  Q.  B. 
<r>2,  466.    But  compare  Minzesheimer  v.  Heine,  4  Smith,  E.  D.  65,  67  J 
Merchant  Banking  Co.  v.  Phoenix  Bessemer  Steel  Co.  Law  R.  5  Ch. 
D.  205  ;  22  Eng.  Rep.  33,  46.    Vendor's  privilege  in  Louisiana  :  See 
Whiston  v.  Stodder,  8  Mart.  (La.)  135  ;  13  Am.  Dec.  281  ;  Copley  v. 
Sanford,  2  La.  An.  335  ;  46  Arn.  Dec.  548  j  Converse  v.  Hill,  14  La.  An. 
89  ;  Flint  v.  11,-uvlings,  20  La.  An.  557  ;  Loeb  v.  Blum,  25  La.  An.  232, 
233  ;  Furnlss'  Succession,  34  La.  An.  1013. 

2  Palmer  v.  Hand,  13  Johns.  439  ;  7  Am.  Dec.  392.    Lien  where 
agreed  mortgage  on  goods  for  price  not  executed:  Alexander  v. 
Heriot,  1  Bail.  Eq.  223,  225.    And  see  Husted  v.  Ingraham,  75  N.  Y. 
251.    No  lien  where  agreement  by  buyer  against  further  sale  of 


. 

chattel  until  price  pail:  Welsh  v.  Parrish,  1  Hill  (S.  C.)  155,  163. 
Seller  not  bound  to  relinquish  lien  whore  terms  of  public  sale  not 
complied  with  :  Wade  v.  Moffitt,  21  111.  110. 

3  Parks  v.  Hall,  2  Pick.  206,  212.    And  see  Jenkins  v.  Eichelberger, 
4  Watts,  121  ;  28  Am.  Dec.  691,  n.  694. 

4  Blackshear  v.  Burke,  74  Ala.  239,  242.    And  see  James  v.  Bird's 
Adm'r,  8  Leigh,  510  ;  31  Am.  Dec.  668,  669  ;  Beam  v.  Blanton,  3  Ired. 
Eq.  53  ;  Lupin  v.  Marie,  6  Wend.  77  ;  21  Am.  Dec.  256,  259,  261  ;  Wilkie 
v.  Day,  6  N.  E.  Rep.  (Mass.)  542.    Cases  illustrating  requisites  of  de- 
livery to  destroy  seller's  lien  :  See  Arnold  v.  Delano,  4  Cush.  33  ;  50 
Am.  Dec.  754,  757.    After  the  goods  coine  into  the  possession  of  the 


I  408  SELLER'S  LIEN.  600 

buyer  the  Hen  is  extinguished :  Parks  v.  Hall,  2  Pick.  206,  212.  And 
see  Freeman  v.  Nichols,  116  Mass.  309  ;  Lupin  v.  Marie,  6  Wend.  77  ; 
21  Am.  Dec.  256,  259-261  ;  Welsh  v.  Bell,  32  Pa.  St.  12, 17  ;  Johnson  v. 
Farnum,  56  Ga.  144, 145  ;  Boyd  t>.  Mosely,  2  Swan,  6f5l.  662  ;  Barnett  v. 
Mason,  7  Ark.  253, 256.  Compare  Musson  v.  Elliott.  30  La.  An.  pt.  1, 
147, 151. 

5  Gwyn  v.  Richmond  etc.  R.  R.  Co.  85  N.  C.  429 ;  39  Am.  Rep.  70S, 
710.    Lien  lost  where  delivery  to  buyer's  servant  on  express  condition 
t  Mat  title  to  remain  in  seller  until  payment  of  note  for  balance  of  price  : 
Helm  v,  Dumars,  3  Cal.  454. 

6  Blackshear  v.  Burke,  74  Ala.  239, 242.    But  compare  Husted  v. 
Ingraham,  75  N.  Y.  251.    Marked  distinction  between  delivery  to  pass 
title  and  to  destroy  lien  :  Arnold  v.  Delano,  4  Cush.  33  ;  50  Am.  Dec. 
754,  756.    See  Thompson  v.  Baltimore  etc.  R.  R.  Co.  23  Md.  396,  406. 

7  See  Parks  v.  Hall,  2  Pick.  206,  212.     And  consult  Arnold  v. 
Delano,  4  Cush.  38;  50  Am.  Dec.  754;  Mason  v.  Hutton,  41  Up.  C'an. 
Q.  B.  610.     But  see  White  v.  Welsh,  38  Pa.  St.  396,  420 ;  Southwest 
Freight  Co.  v.  Stanard,  44  Mo.  71, 84 ;  Southwest  Freight  Co.  v.  Plant, 
45  Mb.  517,  519  ;  Thompson  v.  Baltimore,  etc.  R.  R.  Co.  28  Md.  396,  407. 
Delivery  of  part :  See  Hamberger  v.  Rodman.  9  Dalv,  93  ;  Hewlett 
v.  Flint,  7  Cal.  264. 

8  Boyd  v.  Moseley,  2  Swan,  661,  663. 

9  Sawyer  v.  Fisher,  32  Me.  28.    Liens  in  general:  See  Arnold  V. 
Delano,  4  Cush.  33  ;  50  Am.  Dec.  754 ;  2  Bouvier  Law  Diet.  tit.  Lien  ; 
Bradeen  v.  Brooks,  22  Me.  462, 471, 472. 

10  Sawyer  v.  Fisher,  32  Me.  28. 

11  Gregory  v.  Morris,  96  U.  S.  619,  623.    Instrument  reserving  lien 
as  notice :  Bumi  v.  Valley  Lumber  Co.  51  Wis.  376.    Reservation  of 
lien  upon  articles  as  fast  as  they  are  manufactured  from  property 
sold :  Dunning  v.  Stearns,  9  Barb.  630,  633.     Compare  Burn  bam  v. 
Marshall,  56  Vt.  365.    Reservation  of  lien  on  timber-trees,  remaining 
after  possession  authorized  by  contract,  taken  by  buyer :  Bradeen  v. 
Brooks,  22  Me.  453, 471.    But  compare  Douglas  r.  Shumway,  13  Gray, 
498.    And  see  generally,  Barnett  v.  Mason,  7  Ark.  253  ;  Obermeier  v. 
Core,  25  Ark.  562,  564.    Oral  reservation  of  lien  :  See  Gay  v.  Harde- 
man,  31  Tex.  245,  250  ;  Burnhani  v.  Marshall,  56  Vt.  365. 

12  See  Bugbee  t».  Stevens,  53  Vt.  389,  391 ;  Barber  v.  Richardson,  57 
Vt.  303  ;  McClenney  r.  McClonney,  3  Tex.  102,  197  ;  Bunn  v.  Valley 
I  umber  Co.  51  Wis.  576  ;  Naylor  v.  Young,  7  Lea.  735 ;  Loeb  v.  Blum, 
25  La.  An.  232. 

\  408.  Withholding  or  countermanding  delivery.  —  Gen- 
eral doctrine.  The  rule  is  said  to  be,  that  so  long  as  the 
vendor  has  the  actual  possession  of  the  goods,  or  as 
they  are  in  the  custody  of  his  agents,  and  while  they 
are  in  transit  from  him  to  the  vendee,  he  has  a  right  to 
refuse  or  countermand  the  final  delivery,  if  the  vendee 
be  in  failing  circumstances.1  And  where  personal  prop- 
erty is  sold  on  credit,  if  before  the  possession  is  deliv- 
ered the  vendee  becomes  insolvent,  the  vendor  may 


601  SELLER'S  LIEN.  $  408 

protect  himself,  if  payment  has  not  been  made  when 
the  credit  expires,  by  refusing  to  deliver  possession.2 

Applications.  This  doctrine  of  the  seller's  right  to 
withhold  or  recall  delivery  has  been  applied  to  a  sale  of 
wood  marked  off  and  identified,  but  not  taken  away  by 
the  purchaser,3  and  of  iron  pointed  out  for  purposes  of 
delivery.4  So  where  the  vendors  were  also  warehouse- 
men of  the  goods  sold,  under  an  arrangement  with  the 
purchasers  to  pay  warehouse  rent,  it  was  held  that 
the  vendor's  lien  revived  upon  the  insolvency  of  the 
vendees.5 

Giving  delivery  order,  etc.  And  in  England,  the 
vendor  of  goods  may  stop  their  delivery  under  his  lien 
for  the  price,  even  if  he  has  given  a  delivery  order  for  the 
goods,  if  such  order  has  not  been  presented  to  the  ware- 
houseman or  other  custodian  of  the  goods,  and  recog- 
nized by  him.6  In  this  country,  it  has  also  been  held 
that  the  indorsement  and  transfer  of  a  delivery  order 
does  not  divest  the  seller  of  his  lien  over  goods  still  in 
his  agent's  possession  and  not  yet  paid  for.7 

1  White  v.  Welsh,  38  Pa.  St.  396,  420.    And  see  Arnold  v.  Delano,  4 
Cush.  33  ;  50  Am.  JDec.  754,  757  ;  Hunter  v.  Talbot,  3  Smedes  &  M.  754  ; 
Valpy  v.  Oakeley,  16  Q.  B.  941,  950.    But  compare  Dodsley  v.  Varley, 
12  Ad.  <fe  E.  632  ;  Langdell's  Cases  on  Sales,  155.    Insolvency  of  tbird 
person  upon  whose  credit  goods  were  sold,  held  sufficient:  Wana- 
maker  v.  Yerkes,  70  Pa.  St.  443,  445.    Immaterial  whether  the  sale  is 
of  specific  chattels,  or   an   executory  contract  to  supply  goods: 
Griffiths  v.  Perry,  1  El.  &  E.  680.    And  see  Ex  parte  Chalmers,  Law 
K.  8  Ch.  280, 201.    Destruction  of  goods  withheld  from,  buyer :  Safford 
v.  McDonough,  120  Mass.  290. 

2  Hunter  v.  Talbot,  3  Smedes  &  M.  754,  761. 

3  Arnold  v.  Delano,  4  Cush.  33  ;  50  Am.  Dec.  754. 

4  Thompson  v.  Baltimore  etc.  R.  R.  Co.  28  Md.  396. 

5  Grice  v.  Richardson,  Law  R.  3  App.  Cas.  319;  24  Eng.  Rep. 
241. 

6  McEwan  v.  Smith,  2  H.  L.  Cas.  309.    And  see  Griffiths  v.  Perry, 
1  El.  &  E.  680.    Compare  Pooley  v.  Great  Eastern  Ry.  Co.  34  L.  T. 
N.  S.  537. 

7  Southwestern  Freight  etc.  Co.  v.  Stanard,  44  Mo.  71 , 81.    Counter- 
manding warehouse  order :  Keeler  v.  Goodwin,  111  Mass.  490,  45)1 ,  492. 
Refusal  to  transfer  warehouse  receipt:   Ware  River  R.  R.  Co.  v. 
Vibbard,  114  Mass.  447,  454. 

NEWMABK  SALES.  — 51. 


§  409  SELLER'S  LIEN.  602 

?  409.  Giving  credit.  —  As  waiver  of  lien.  When  a 
credit  is  given  by  agreement,  the  vendee  has  a  right,  in 
the  absence  of  a  contrary  usage  of  trade,1  to  the  custody 
and  actual  possession  of  the  goods  on  a  promise  to  pay 
at  a  future  time  ; 2  and  if  he  takes  the  goods  away,  and 
into  his  own  charge,  the  lien  of  the  vendor  is  gone,3 
unless  there  is  an  agreement  to  the  contrary,4  since  it  is 
a  right  dependent  on  possession.5  But  it  is  said  that 
the  law,  in  holding  that  a  vendor  who  has  thus  given 
credit  for  the  goods  waives  his  lien  for  the  price,6  does 
so  on  the  one  implied  condition  that  the  vendor  shall 
keep  his  credit  good.7 

Insolvency  of  buyer  where  possession  retained  or  re- 
gained.  Hence,  if  before  payment  the  vendee  becomes 
bankrupt  or  insolvent,  and  the  vendor  still  retains  pos- 
session of  the  goods  or  any  part  of  them,8  or  if  the 
goods  are  in  the  hands  of  a  carrier,  on  their  way  to  the 
vendee,  and  the  vendor,  before  they  have  got  into 
the  actual  possession  of  the  vendee,  can  regain  his 
actual  possession  by  a  stoppage  in  transitu?  then  his 
lien  is  restored,  and  he  may  hold  the  goods  as  security 
for  the  price.10 

Taking  notes,  etc.  And  the  rule  of  law  giving  the 
vendor  this  common-law  lien  for  the  unpaid  price, 
whereby  he  may  hold  goods,  whose  possession  he  has 
retained  or  regained,  against  a  defaulting  and  insolvent 
buyer,  is  applicable  though  a  negotiable  promissory  note 
has  been  given  for  the  purchase  money,11  if  it  remains  in 
the  hands  of  the  vendor,  and  has  not  been  negotiated, 
so  that  it  may  be  delivered  up  on  discharge  of  the  lien.12 
In  England,  it  seems  to  be  considered  that  upon  the 
dishonor  of  bills  of  exchange  for  the  price,  or  the  open 
insolvency  of  purchaser,  before  delivery  has  been 
made,  the  vendor's  suspended  lien  revives,  and  deliv- 
ery will  not  be  required.13 


603  SELLER'S  LIEN.  §  410 

1  See  Field  v.  Lelean,  6  Hurl.  &  N.  6,  7. 

2  Arnold  v.  Delano,  4  Cush.  33 ;  50  Am.  Dec.  754,  756.    And  see 
Bpartali  v.  Beuecke,  10  Com.  B.  212,  221 ;  Leonard  v.  Davis,  1  Black, 
476,  483. 

3  Arnold  v.  Delano,  4  Cush.  33 ;  50  Am.  Dec.  754, 757. 

4  See  Gregory  v.  Morris,  96  TJ.  S.  619. 

5  Arnold  v.  Delano,  4  Cush.  33 ;  50  Am.  Dec.  754, 757. 

6  Waiver  of  lien  in  general :  Pickett  v.  Bullock,  52  N.  H.  354  ;  Out- 
calt  v.  Durling,  1  Dutch.  443,  448;  Dempsey  v.  Carson,  11  Up.  Can. 
C.  P.  462,  466. 

7  Arnold  v.  Delano,  4  Cush.  33  ;  50  Am.  Dec.  754, 757.    See  Thomp- 
son v.  Baltimore  etc.  R.  R.  Co.  28  Md.  836,  406,  407. 

8  See  Grice  v.  Richardson,  Law  R.  3  App.  Gas.  319 ;  24  Eng.  Rep. 
214. 

9  Stoppage  intransitu:  See  subsequent  chapter  on  that  subject. 

10  Arnold  v.  Delano,  4  Gush.  33 ;  50  Am.  Dec.  754,  757.    See  Thomp- 
son v.  Baltimore  etc.  R.  R.  Co.  28  Md.  396,  406,  407.    Same  effect : 
White  v.  Welsh,  38  Pa.  St.  396,  420 ;  Parks  v.  Hall,  2  Pick.  206,  211 ; 
Hunter  v.  Talbot,  3  Smedes  &  M.  754,  761  ;  Southwest  Freight  Co.  v. 
Stanard,  44  Mo.  71,  84  ;  Parker  v.  Byrnes,  1  Low.  539,  540  ;  Re  Batchel- 
der,  2  Low.  245,  248.    Resale  on  notice  after  expiration  of  credit  and 
default  in  payment :  Bab  cock  v,  Bonnell,  80  N.  Y.  244,  249.    English 
views:  See  New  v.  Swaim,  Dan.  &  LI.  193,  195;  Dixon  v.  Yates,  5 
Barn.  &  Adol.  313,  339. 

11  See  Clark  v.  Draper,  19  N.  H.  419, 423. 

12  Milliken  v.  Warren,  57  Me.  46,  50.    And  see  Arnold  v.  Delano,  4 
Cush.  33 ;  50  Am.  Dec.  754,  759  ;  Parker  v.  Byrnes,  1  Low.  539,  540. 
Payment  in  note  of  third  person :  See  Benedict  v.  Field,  16  N.  Y.  595. 
Transfer  of   note:  See  Creanor  v.  Creanor,  36  Ark.  91;  Jeckell   v. 
Fried,  IS  La.  An.  192  ;  Johnson  v.  Dickinson,  78  N.  Y.  42.    Extinction 
of  lien  by  giving  receipted  bill  of  parcels,  etc. :  Chapman  v.  Searle, 
3  Pink.  38,  45. 

13  Gunn  v.  Bolckow,  Law  R.  10  Ch.  App.  491,  501.    Application 
where  goods  lie  in  warehouse  of  third  party :  Dixon  v.  Yates,  5  Barn. 
<fe  Adol.  313,  341.    But  compare  Pooley  v.  Great  Eastern  By.  Co.  34 
L.  T.  N.  S.  537,  540.    Waiver  of  lien  generally,  by  taking  bills  as  pay- 
ment :  Horncastle  v.  Farrau,  3  Barn.  &  Aid.  497  ;  Hewison  v.  Guth- 
rie,  2  Bing.  N.  C.  755. 

§  410.  Sub-sale  and  estoppel.  —  Resale  by  buyer.  A 
resale  of  the  goods  by  the  buyer,  even  to  a  bona  fide 
purchaser,  in  no  way  affects  the  vendor's  lien,  unless 
the  sale  was  made  with  the  vendor's  knowledge  and 
approval.1  But  if  goods  sold  for  a  promissory  note  at 
sixty  days  be  left  with  the  vendor,  and  he  show  them 
as  the  goods  of  the  vendee,  a  sale  by  the  vendee  to  the 
person  who  thus  examined  them  will  be  good  as  against 
a  transfer  by  the  vendor.2  In  England,  prior  to  the 


§  410  SELLER'S  LIEN.  604 

latest  of  the  factor's  acts,3  not  only  a  sub-sale  by  the 
vendee,4  but  even  the  mere  giving  of  a  delivery  order 
and  its  transfer  to  the  sub-vendee,  did  not  deprive  the 
owner  of  his  right  of  lien  for  the  price  of  the  goods.5 

Estoppel  of  seller.  But  a  seller  who  expressly  or  im- 
pliedly  recognizes  a  delivery  order  is  estopped  from 
asserting  his  lien  for  the  unpaid  price,  as  against  a  sub- 
vendee  of  the  buyer,6  who  has  by  such  conduct  been 
induced  to  alter  his  position  either  by  actual  payment 
of  the  price,  or  by  abstaining  from  action  to  recover  it 
back.7  And  in  this  country  it  has  been  held  that  where 
the  position  of  a  pledgee  is  altered  by  relying  on  an  evi- 
dence of  title,  such  as  a  warehouse  receipt  in  the  hands 
of  the  buyer,  and  a  consequent  abstaining  from  action 
by  way  of  an  attempt  to  recover  the  loan  or  secure  an 
indemnity,  the  unpaid  seller  of  the  goods  is  estopped 
from  claiming  title  thereto.8 

1  Hamberger  v.  Rodman,  9  Paly,  93.    And  see  Haskell  v.  Rice,  11 
Gray,  2-iO ;  Milliken  v.  Warren,  57  Me.  46. 

2  Hunn  v.  Bowne,  2  Caines,  38.    No  replevin  by  sub-vendee  of 
unspecified  and  unappropriated  chattels :    Scudder  v.  Worster.  11 
Cush.  573. 

3  See  40, 41  Viet.  (1877)  ch.  39,  §  5. 

4  See  Dixon  v.  Yates,  5  Barn.  &  Adol.  313  339,  343. 

.-  MeEwan  v.  Smith,  2  H.  L.  Cas.  309,  325  ;  Griffiths  v.  Perry,  1  El. 
&  E.  G80,  689.  And  see  Imperial  Bank  v.  London  etc.  Dock  Co.  Law 
R.  5  Ch.  D.  195,  200 ;  22  Eng.  Rep.  24,  29.  Otherwise  if  document  trans- 
ferred is  shown  to  be  regarded  as  negotiable:  Merchant  Banking 
Co.  v.  Phoanix  Bessemer  Steel  Co.  Law  R.  5  Ch.  D.  205,  215 ;  22  Eng. 
Rep.  33,  42.  But  compare  Gunn  v.  Bolckow,  Law  R.  10  Ch.  App.  491, 
503. 

6  Pearson  v.  Dawson,  El.  B.  &  E.  448,  456,  457,  458.    But  compare 
Farmeloe  v.  Bain,  Law  R.  1  C.  P.  D.  445,  4-50,  451  ;  17  Eng.  Rpp.  349,  354, 
355  ;  Merchant  Banking  Co.  v.  Phoenix  Bessemer  Steel  Co.  Law  R.  5 
Ch.  D.  205,  215 ;  22  Eng.  Rep.  33,  43. 

7  Knights  ?>.  Wiffen,  Law  R.  5  Q.  B.  660,  665,  667  ;  LangdelPs  Cases 
on  Sales,  766,  771,  772  ;  following  Woodley  v.  Coventry,  2  Hurl.  &  C. 
164  ;  LangdelPs  Cases  on  Sales,  760. 

8  Voorhis  v.  Olmsted,  66  N.  Y.  113.    But  compare  Hamburger  v. 
Rodman,  9  Daly,  93, 100. 


605  STOPPAGE   IN  TRANSIT!!.  \  411 

CHAPTER    XXXVIII. 

STOPPAGE   IN  TRANSITU. 

\  411.  In  general. 

\  412.  Buj-er's  insolvency. 

2  413.  Duration  of  transit. 

\  414.  Capacity  of  middleman. 

§  415.  Delivery  terminating  transit. 

5  416.  By  whom  right  exercised. 

§  417.  Mode  of  exercising  right. 

\  418.  Mode  of  defeating  right. 

\  411.  In  general.  —  Nature  and  requisites.  Stoppage 
in  transitu  is  a  resumption  by  the  seller  of  the  posses- 
sion of  goods  not  paid  for,  while  on  their  way  to  the 
buyer  and  before  he  has  acquired  actual  possession.1 
And  to  enable  the  vendor  to  exercise  the  right,  the 
goods  sold  must  be  unpaid  for,  the  vendee  must  be  in- 
solvent, and  the  goods  must  be  in  transit.2  This  right 
does  not  proceed  on  the  ground  of  rescinding  but  of 
continuing  the  contract  of  sale,  by  way  of  extension  of 
an  equitable  lien  on  the  goods.3 

Non-payment  of  any  part  of  price.  If  there  be  any 
part  of  the  purchase  money  unpaid,  and  the  purchaser 
becomes  insolvent,  the  vendor  has  the  right  of  stop- 
ping the  chattels  in  transitu,  at  any  time  before  actual 
delivery.4 

Giving  credit,  taking  notes,  etc.  Nor  will  the  seller  be 
deprived  of  his  right  of  stoppage  in  transitu  because 
the  goods  were,  sold  on  credit,5  nor  by  reason  of  the 
taking  or  even  the  negotiating  of  promissory  notes, 
bills  of  exchange,  or  other  like  instruments,  if  not 
received  by  way  of  absolute  payment  of  the  price.6 

1  2  Bonvier  Law  Diet.  tit.  Stoppage  in  Transitu.  And  see  Loeb 
v.  Peters,  63  Ala.  243  ;  35  Am.  Hep.  17, 18  ;  2  Kent  Com.  540  ;  Atkins  v. 
Colby,  20  N.  H.  154, 155  ;  O'Brien  v.  Norris,  Ifi  Mel.  1±2, 130  ;  Inslee  v. 
Lane,  57  N.  H.  454, 457 ;  Hause  v.  Judson,  4  Dana,  7  ;  29  Am.  Dec.  377, 


§  412  STOPPAGE  IN  TRANSITU.  606 

380.  Distinguished  from  rescission  by  mutual  consent :  Ash.  v.  Put- 
nam, 1  Hill,  302.  Exact  character  stated :  Walsh  v.  Blakely,  9  Pacif. 
Hep.  (Mont.)  809.  Basis  in  reason  of  justice,  etc. :  See  Loeb  v.  Peters, 
63  Ala.  24:5 ;  35  Am.  Hep.  17, 19  ;  2  Kent  Com.  542  ;  Symns  v.  Schotten, 
10  Pacif.  Rep.  (Kan.)  828.  May  be  exercised  upon  negotiable  paper  : 
Muller  v.  Pondir,  55  N.  Y.  325 ;  14  Am.  Rep.  259, 268, 270. 

2  More  v.  Lott,  13  Xev.  376,  379.    And  see  Wood  v.  Roach,  2  Ball. 
ISO  ;  1  Am.  Dec.  276  ;  Cooper  v.  Bill,  3  Hurl.  &  C.  722, 727  ;  Chandler  v. 
Fulton,  10  Tex.  2  ;  60  Am.  Dec.  188,  100;  Walsh  v.  Blakely,  9  Pacif. 
Rep.  (Mont.)  809.    But  if  the  goods  pass  from  the  hands  of  the  carrier 
or  other  middleman  into  the  actual  possession  or  control  of  the 
buyer,  the  seller's  right  over  them  is  gone:  See  Cooper  ??.  Bill,  3 
Hurl.  &  C.  722,  727  ;  Walsh  v.  Blakely,  9  Pacif.  Rep.  (Mont.)  809.    And 
consult  The  St.  Joze  Indiana,!  Wheat.  208,  212  ;  Chandler  v.  Fulton, 
10  Tex.  2  ;  60  Am.  Dec.  188, 190. 

3  See  Jordan  v.  James,  5  Ohio,  88,  98  ;  Patten's  Appeal,  45  Pa.  Sf 
151, 158, 15'J ;  Kemp  v.  Falk,  Law  R.  7  App.  C.  573,  5S1  ;  35  Eng.  Rep1 
395,  403.    And  consult  Rowley  v.  Bigelow,  12  Pick.  307;  23  Am.  Dec' 
607;  2  Kent  Com.  541  ;  Babcock  v.  Bonnell,  83  N.  Y.  214  ;  Xewhall  v 

s,  15  Me.  314,  319  ;  33  Am.  Dec.  617.    Insolvency  of  buyer  does 
not  revoke  contract :  McElroy  v.  Seerey,  61  Md.  389  ;  48  Am.  Rep.  110. 

4  Jordan  v.  James,  5  Ohio,  88, 99.    Like  effect :  Xewhall  v.  Vargas, 
13  Me.  93, 108  ;  29  Am.  Dec.  4tfJ  ;  2  Kent  Com.  541.    And  see  Hodgson  v. 
Loy,  7  Term  Rep.  440  ;  Feise  v.  Wray,  3  East,  93,  102 ;  Edwards  v. 
Brewer,  2  Mees.  &  W.  37"> ;  Van  Casfeel  v.  Booker,  2  Ex.  6f)l,  702  ; 
Atkins  v.  Colby,  20  X.  H.  1-^4;  Haven  v.  Place,  28  Minn.  551,  553. 
Compare  Kewhall  r.  Vargas,  15  Me.  314, 324 ;  33  Am.  Dec.  617.    Actual 
delivery :  Compare  §  415. 

5  Clapp  v.  Peck,  55  Iowa,  270.    And  see  Clapp  v.  Sohmer,  55  Iowa, 
273 ;  Babcock  v.  Bonnell,  80  X.  Y.  244,  249  ;  Stubbs  v.  Lund,  7  Mass. 
453, 456  ;  5  Am.  Dec.  63.    Unsettled  accounts  between  consignor  and 
consignee:  Wood  v.  Jones,  7  Dowl.  &  R.  126.    And  see  Kinloch  i\ 
Craig,  3  Term  Rep.  119  ;  Stanton  v.  Eager,  16  Pick.  467.    But  compare 
Vertue  v.  Jewell,  4  Camp.  31.    And  see  Patten  v.  Thompson,  5  Maule 
&  S.  350,  360,  361. 

6  See  Stubbs  v.  Lund,  7  Mass.  453;  5  Am.  Dec.  63;  Xewhall  v. 
Vui-LT-is,  13  Me.  93,  103;  2-)  Am.  Dec.  489;  Clapp  v.  Sohmer,  55  Iowa, 
273  ;  Boll  r.  Moss,  5  Whart.  189,  200  ;  Hays  v.  Mouille,  14  Pa.  St.  48,  54  ; 
Lewis  7'.  Mason,  36  Up.  Can.  Q.  B.  590,  605-608.    But  compare  Eaton  v. 
Cook,  32  Vt.  58. 

§  412.  Buyer's  insolvency.  —  As  determining  right  of 
stoppage.  The  validity  of  the  right  of  stoppage  in 
transitu  depends  entirely  on  the  bankruptcy  or  insolv- 
ency of  the  vendee.1 

What  constitutes.  It  is  not  necessary,  however,  that 
there  should  be  proof  of  a  technical  insolvency  on  the 
part  of  the  buyer,  but  it  is  sufficient  to  show  a  general 
inability  on  his  part  to  pay  his  debts,  although  he  may 
not  have  taken  the  benefit  of  an  insolvent  law,  or  made 
an  assignment  for  the  benefit  of  his  creditors,  or  made 


607  STOPPAGE   IN  TRANSITU.  g  413 

a  stoppage  of  payment,  or  evinced  the  failure  in  his 
circumstances  by  any  overt  act.2 

Time  of  insolvency.  And  the  seller  of  goods  may  stop 
them  in  transitu  on  account  of  the  buyer's  insolvency 
existing  before  the  sale,  but  not  known  to  the  seller 
until  after  the  sale.3 

Information  of  insolvency.  It  is  laid  down  that  any 
well-founded  or  probable  information  of  such  an  em- 
barrassment on  the  part  of  the  buyer  as  to  prevent  him 
from  honoring  his  drafts,  or  meeting  the  demands  of  his 
creditors,  is  sufficient  insolvency  to  justify  the  vendor 
in  stopping  the  goods  sold.*  But  if  through  excess  of 
caution  or  from  misinformation,  he  make  a  mistake  and 
stop  the  goods  when  the  buyer  is  not  insolvent,  the  buyer 
would  be  entitled  to  claim  the  goods  and  an  indemni- 
fication for  all  the  expenses  arising  out  of  the  stoppage.5 

1  O'Brien  v.  Norris,  16  Md.  122,  132.    And  see  Fox  v.  Willis,  60 
Tex.  373,  376,  377  ;  2  Kent  Com.  543 ;  Stewart  v.  Man,  2  Tox.  App. 
(Civ.  Cas.)  \  787  ;  The  St.  Joze  Indiana,  1  Wheat.  208.    Insolvency  of 
Intermediate   party  insufficient:    Eaton   v.    Cook,  32   Vt.  58.     See 
Memphis  etc.  B.  B.  Co.  v.  Freed,  38  Ark.  614. 

2  See  O'Brien  v.  Norris,  16  Md.  122,  132 ;  Hays  v.  Mouille,  14  Pa. 
St.  48,  51 ;  Durgey  Cement  etc.  Co.  v.  O'Brien,  123  Mass.  12, 13  ;  Nuylor 
v.  Dennie,  8  Pick.  198,  205;  19  Am.  Dec.  319;  Bloomingdale  v.  Mem- 
phis etc.  B.  B.  Co.  6  Lea,  616,  628  ;  Benedict  v.  Schaettle,  12  Ohio  St. 
515,  519;  More  v.  Lott,  13  Neb.  376.    Contra,  see  discredited  case  of 
Bogers  v.  Thomas,  20  Conn.  53,  62. 

3  Loeb  v.  Peters,  63  Ala.  243, 248  ;  35  Am.  Bep.  17.    And  see  Bene- 
dict v.  Schaettle,  12  Ohio  St.  515,  519;  Reynolds  v.  Boston  etc.  B.  11. 
Co.  43  N.  H.  580,  588.    Same  effect:  Naylor  v.  Dennie,  8  Pick.  1C8, 
203;  49  Am.  Dec.  319;  Buckley  v.  Furniss,  15  Wend.  137;  Stevens  v. 
Wheeler,  27  Barb.  658;  O'Brien  v.  Norris,  16  Md.  122,  132;  Blum  v. 
Marks,  21  La.  An.  208,  289  ;  White  v.  Mitchell,  38  Mich.  3(JO.    And  see 
Conyers  v.  Ennla,  2-  Mason,  236  ;  Biggs  v.  Barry,  2  Curt.  259.    Contra, 
see  discredited  case  of  Bogers  v.  Thomas,  20  Conn.  53. 

4  More  v.  Lott,  13  Nev.  376.    And  C9nsult  Walsh  v.  Blakely,  9 
Pacif.  Bep.  (Mont.) 809.    Knowledge  of  insolvency  in  general:  See 
O'Brien  v.  Norris,  16  Md.  122, 132  ;  Blum  v.  Marks,  21  La.  An.  268  ;  Lee 
v.  Kilburn,  3  Gray,  595,  599  ;  Secomb  v.  Nutt,  14  Mon.  B.  261,  263. 

5  More  v.  Lott,  13  Nev.  376,  383.    Same  effect :  The  Constantia,  6 
Bob.  Adm.  321  ;  quoted,  Benedict  v.  Schaettle,  12  Ohio  St.  515,  518. 
Compare  The  Tigress,  22  Law  J.  Adm.  97, 101. 

\  413.  Duration  of  transit.  —  In  general.  A  vendor 
has  a  right  to  stop  goods  sold  by  him,  where  he  dis- 


$  413  STOPPAGE   IN  TRANSITU.  608 

covers  the  vendee  to  be  insolvent,  at  any  time  while  the 
goods  are  in  transitu.1  And  goods  are  said  to  be  in 
transit  so  long  as  they  are  on  the  passage,  and  until  they 
come  into  the  actual  or  constructive  possession  of  the 
buyer,  or  of  some  person  acting  for  him.2 

Beginning  and  end  of  transit.  The  stoppage  to  be  ef- 
fective must  occur  between  the  two  points  where  the 
transit  begins,  which  happens  when  the  carrier  or 
middleman  takes  possession  of  the  goods  from  the 
seller  as  carrier  or  middleman,  and  where  the  transit 
ends,  which  happens  when  the  carrier  or  middleman 
divests  himself  of  possession  in  such  capacity  to  the 
buyer.3 

Continuance  of  transit.  The  goods  are  deemed  to  be 
in  transitu,  not  only  while  they  remain  in  the  possession 
of  the  carrier,  whether  by  land  or  water,  although  such 
carrier  may  have  been  named  and  appointed  by  the 
consignee,4  but  also  while  they  are  in  any  place  of  de- 
posit connected  with  their  transmission  and  delivery, 
and  until  they  reach  the  actual  or  constructive  posses- 
sion of  the  consignee,  at  the  place  named  by  the  seller 
to  the  buyer  as  their  destination.5 

Cessation  of  right  of  stoppage.  Yet  the  vendor's  right 
of  stoppage  is  at  an  end  when  the  goods  have  either 
come  into  the  actual  possession  of  the  vendee  at  an  in- 
termediate point,  or  have  reached  the  place  of  their 
destination,  and  are  delivered  either  to  the  vendee,  or  in 
his  absence,  to  a  third  person  selected  by  the  carrier  to 
keep  them  for  the  vendee.6 

Recommencement  of  transit.  If  a  transit  is  once  at  end , 
the  delivery  is  complete  and  the  transit  cannot  com- 
mence again,  because  the  goods  are  sent  to  a  new  and 
ulterior  destination.7 

1  Stevens  v.  Wheeler,  27  Barb.  658.663.  And  see  White  v.  Welsh, 
38  Pa.  St.  396,  420  ;  Hays  v.  Mouille,  14  Pa,  St.  48, 51.  Compare  Loeb  v. 
Blum,  25  La.  An.  232,  233. 


609  STOPPAGE   IN  TRANSITU.  §  414 

2  More  v.  Lott,  13  Nev.  376.    And  see  Halff  v.  Allyn,  60  Tex.  278, 279. 

3  See  Walsh  v.  Blakely,  9  Pacif.  Bep.  (Mont.)  809, 812.    And  consult 
Wongcr  v,  Bernhardt,55  Pa.  St.  300  ;  Boyd  v.  Mosely,2  Swan,  661,  6G3  ; 
Wind  Engine  etc.  Co.  v.  Oliver,  16  Neb.  612,  614  ;  Chicago  etc.  B.  B.  Co. 
v.  Painter,  15  Neb.  394,  396  ;  Symns  v.  Schotten,  10  Pacif.  Hep.  (Kan.) 
728  ;  Ex  parte  Watson,  Law  B.  5  Ch.  D.  35  ;  21  Eng.  Bep.  764  ;  Hays  v. 
Mouille,  14  Pa.  St.  48,  53  ;  Covell  v.  Hitchcock,  23  Wend.  611 ;  Buckley 
v.  Furniss,  15  Wend.  137. 

4  See  Berndston  v.  Strang,  Law  B.  4  Eq.  481 ;  Ex  parte  Bosevear 
etc.  Co.  Law  K.  11  Ch.  D.  560  ;  27  Eng.  Bep.  778 ;  Stokes  v.  La  Bivicre, 
reported  In  Bohtlingh  ?>.  Inglis,  3  East,  8-J7  ;  Hoist  v.  Pownall,  1  Esp. 
40  ;  Northey  v.  Field,  2  Esp.  613  ;  Hodgson  v.  Loy,  7  Term  Bep.  440. 

5  Halff  v.  Allyn,  60  Tex.  278, 279.    And  see  Abbott  on  Shipping,  520, 
521 ;  Chandler  v.  Fulton,  10  Tex.  13 ;  60  Am.  Dec.  188,  1<)1 ;  Hall  v. 
Dimond,  3  Atl.  Bep.  (N.  H.)  423.    Compare  Atkins  v.  Colby,  20  N.  H. 
154 ;  Mohr  v.  Boston  etc.  B.  B.  Co.  106  Mass.  67, 70  ;  Sawyer  v.  Joslin, 
20  Vt.  172, 179 ;  49  Am.  Dec.  768  ;  Conyers  v.  Ennis,  2  Mason,  236. 

6  See  Lane  v.  Bobinson,  18  Mon.  B.  623,  6HO  ;  Stevens  v.  Wheeler, 
27  Barb.  608, 603, 664  ;  Wood  v,  Yeatman,  15  Mon.  B.  270, 279, 280  ;  Walsh 
v.  Blakely,  9  Pacif.  Bep.  (Mont.)  809. 

7  Pottinger  v.  Hecksher,  2  Grant  Cas.  309,  314.    And  see  Brooke 
Iron  Co.  v.  O'Brien,  135  Mass.  442, 447. 

§  414.  Capacity  of  middleman,  —  In  general.  In  the 
absence  of  any  understanding  to  the  contrary,  the 
employment  of  a  carrier  by  a  seller  of  goods  on  credit, 
constitutes  all  middlemen  into  whose  custody  they 
pass,  agents  of  the  seller,  for  their  transportation  and 
delivery,  and  the  goods  are  deemed  in  transit  until  the 
complete  performance  of  the  carrier's  whole  duty.1 

Intermediate  agent.  If,  however,  a  party  to  whom 
goods  are  delivered  is  clothed  with  a  general  and  un- 
limited power  to  receive  them  and  alter  their  destina- 
tion, the  transit  ends,  as  between  vendor  and  vendee, 
when  the  goods  reach  his  hands.2  But  if  an  agent  be 
clothed  only  with  specific  and  limited  authority,  to  for- 
ward goods  to  a  particular  destination,  the  transitus  is 
not  at  end  until  the  goods  have  reached  the  place  named 
by  the  buyer  or  seller  as  such  destination.3  Accord- 
ingly the  vendor's  right  of  stoppage  continues,  where 
an  intermediate  delivery  occurs  before  the  goods  reach 
their  ultimate  destination,  if  the  middleman  to  whom 
they  are  thus  delivered,  or  with  whom  they  are  thus 


$   414  STOPPAGE   IX   TRAXSITTJ.  610 

deposited,  has  no  authority  to  give  them  a  new  destina- 
tion not  originally  intended,  but  is  a  mere  agent  to 
transmit  or  forward  the  goods  in  accordance  with  the 
original  directions.4  On  the  other  hand  the  transitus  is 
at  an  end,  and  the  vendor's  right  of  stoppage  ceases 
when  goods  are  delivered  at  a  place  where  they  will 
remain  until  a  fresh  impulse  is  communicated  to  them 
by  the  vendee,5  as  if  they  reach  the  hands  of  a  forward- 
ing merchant,  there  to  await  the  instructions  of  the 
purchaser  respecting  any  further  transit.6 

Detention  for  carrier's  charges.  The  right  of  stoppage 
remains,  however,  while  the  goods  are  still  liable  to  be 
held  by  the  carrier,  subject  to  his  lien  for  freight  or 
charges,  or  are  so  detained,7  and  in  the  absence  of  clear 
proof  of  an  arrangement  or  agreement  that  the  carrier 
holds  the  goods  in  the  capacity  of  warehouseman  for 
the  buyer.8 

1  Calahan  v.  Babcock,  21  Ohio  St.  281, 293  ;  8  Am.  Rep.  63.    Carrier's 
attitude  toward  goods  at  terminus  :  See  James  v.  Griffin,  2  Mees.  & 
W.  623  ;  Bolton  v.  Lancashire  etc.  Ry.  Co.  Law  R.  1  Com.  P.  431, 438 ; 
Ex  parte  Burrow,  Law  R.  6  Ch.  D.  783  ;  23  Eng.  Rep.  349,  354 ;  Jackson 
v.  Nichol,  5  Bing.  N.  C.  508,  518 ;  Whitehead  v.  Anderson,  9  Mees.  & 
\V.  518,  5:35 ;  Coventry  v   Gladstone,  Law  R.  6  Eq.  44,  50 ;  Ex  parte 
Cooper,  Law  R.  11  Ch.  D.  68 ;  27  Eng.  Rep.  338,  342  ;  Inslee  v.  Lane,  57 
N.  H.  454 ;  Alsberg  v.  Latta,  30  Iowa,  442,  447  ;  McFetridge  v.  Piper,  40 
Iowa,  627,  628.    Capacity  of  middleman  as  question  of  fact:  Hallr. 
Dimond,  3  Atl.  Rep.  (N.  H.)  423.    Question  whether  warehouseman 
received  goods  as  agent  of  vendee  or  of  carrier :  Hoover  v.  Tibbits, 

13  Wis.  70,  81.    See,  also,  2  Kent  Com.  545  ;  Chandler  v.  Fulton,  10  Tex, 

14  ;  60  Am.  Dec.  188, 191 ;  Halff  v.  Allyn,  60  Tex.  278, 282. 

2  Pottinger  v.  Hecksher,  2  Grant  Cas.  309,  314. 

3  Pottinger  v.  Hecksher,  2  Grant  Cas.  309,  314.    And  see  O'Neil  v. 
Garrett,  6  Iowa,  480, 435.    Goods  rejected  by  both  parties :  Bolton  v. 
Lancashire  etc.  Ry.  Co.  Law  R.  1  Com.  P.  431. 

4  See  Cabeen  v.  Campbell,  30  Pa.  St.  254,  259 ;  Markwald  v.  Cred- 
itors, 7  Cal.  213,214.    Same  effect:  Blackman  v.  Pierce,  23  Cal.  508, 
511 ;  Aguirre  v.  Parmelee,  22  Conn.  473,  432;  Pottinger  v.  Hecksher,  2 
Grant  Cas.  309.  314  ;  Hepp  v.  Glover,  15  La.  461  ;  35  Am.  Dec.  206,  208, 
203 ;  Harris  v.  Pratt,  17  N.  Y.  24*),  252,  reviewing  English  and  other 
cnsos ;  Harris  y.  Hart,  6  Duer,  606,  613,  616,  617,  reviewing  cases  and 
stating  conclusions. 

5  Guilford  v.  Smith,  30  Vt.  49,  67.    And  see  Gill  v.  Benjamin,  64 
Wis.  362  ;  54  Am.  Rep.  619,  622  ;  citing,  Dixon  v.  Baldwin,  5  East,  175  ; 
Kendall  v.  Stevens  (or  Marshall),  Law  R.  11  Q,  B.  D.  356 ;  and  Ex 
parte  Miles,  Law  R.  15  Q.  B.  D.  39. 


611  STOPPAGE   IN  TRANSITU.  §  415 

6  Biggs  v.  Barry,  2  Curt.  259, 262  ;  discussed,  Harris  v.  Hart,  6  Duer. 
606,  625.     Same  effect:  Hays  i>.  Mouille,  14  Pa.  fet.  48;  Guilford  v. 
Smith,  30  Vt.  49,  61 ;  Ex  parte  Gibbes,  Law  R.  1  Ch.  IX  101, 109 ;  15  Eng. 
Rep.  667,  674.    See  Becker  v.  Hallgarten,  86  N.  Y.  167, 173, 174.     Right 
of  stoppage  gone  if  delivery  to  a  special  agent  or  bailee  representing 
the  buyer,  and  receiving  the  goods  either  for  custody  or  disposal: 
Walsh  v.  Blakely,  9  Pac.  Rep.  (Mont.)  809. 

7  See  Sawyer  v.  Joslin,  20  Vt.  172  ;  49  Am.  Dec.  768,  773  ;  Calahan 
v.  Babcock,  21  Ohio  St.  281 ;  8  Am.  Rep.  63,  65. 

8  See  Kemp  v.  Falk,  Law  R.  7  App.  C.  573,  584  ;  35  Eng.  Rep.  395, 
405  ;  and  consult  Hall  v.  Dimond,  3  Atl.  Rep.  (N.  H.)  433 ;  Ex  parte 
Cooper,  Law  R.  11  Ch.  D.  68, 74, 76, 78  ;  27  Eng.  338, 343, 345, 346 ;  Ex  parte 
Burrow,  Law  R.  6  Ch.  D.  783,  788  ;  Whitehead  v.  Anderson,  9  Mees.  & 
W.  518,  535;  Symns  v.  Schotten,  10  Pacif.  Rep.  (Kan.)  828,  discussing 
subject.     But  compare  Guilford  v.  Smith,  30  Vt.  49,  72;  Allen  v. 
Griffin,  2  Cromp.  &  J.  218.    Consult  further,  Macon  Western  R.  R.  Co. 
v.  Meador,  65  Ga.  725;  Inslee  v.  Lane,  59  N.  H.  454;  Greve  v.  Dun- 
ham, 60  Iowa,  108,  111 ;  McLean  v.  Brethaupt,  19  Cent.  L.  J.  (Can.)  176  ; 
More  v.  Lott,  13  Nev.  376,  383. 

$  415,  Delivery  terminating  transit.  —  Actual  delivery. 
The  actual  delivery  to  the  vendee  which  puts  an  end  to 
the  transitus,  or  state  of  passage,1  may  be  at  the  vendee's 
own  warehouse,  or  at  a  place  used  by  him  for  the  de- 
posit of  goods ; 2  or  where  such  is  the  intent  of  the 
parties,  by  loading  the  goods  on  trucks  sent  by  the 
buyer's  agents ; 3  or  as  generally  held,  by  placing 
the  goods  on  board  the  vendee's  own  vessel,  or  even 
one  chartered  by  him.4  So  the  delivery  of  goods  to 
the  vendee,  which  puts  an  end  to  the  state  of  passage, 
and  so  deprives  the  vendor  of  the  right  of  stoppage  in 
transitu,  may  be  at  a  place  where  the  vendee  means 
the  goods  to  remain  until  a  fresh  destination  is  given  to 
them  by  orders  from  himself.5 

Constructive  delivery.  And  a  vendor  of  goods  cannot 
exercise  the  right  of  stoppage  in  transitu  where  there 
has  been  a  constructive  delivery  to  the  buyer,  as  after 
the  goods  have  been  delivered  by  the  carrier  to  a  third 
person  on  the  vendee's  order;6  or  where  the  goods, 
having  reached  their  destination,  have  been  deposited 
in  a  warehouse,  subject  to  the  order  and  control  of  the 
buyer;7  or  where  the  goods  have  been  landed  at  the 
customary  place  upon  a  wharf  near  the  buyer's  place 


§   415  STOPPAGE   IN  TRANSITU.  612 

of  business,  and  where  they  are  free  from  any  outside 
custody  or  lien  for  freight  or  charges.8 

Insufficient  delivery.  But  the  transfer  of  goods  from 
the  car  into  the  depot  or  warehouse  at  the  station 
designated  for  their  discharge,  in  the  vicinity  of  the 
buyer's  place  of  business,  there  to  await  the  payment 
by  him  of  the  charges  thereon,  does  not  ipso  facto  con- 
stitute a  delivery  thereof.9  Kor  does  the  taking  of  per- 
sonal property  from  the  carrier  by  an  officer  levying 
execution  thereon,  under  the  process,  and  not  as  agent 
of  the  purchasers,  operate  as  a  delivery  to  them,  so  as 
to  defeat  the  right  of  stoppage.10  And  it  seems  that 
the  delivery  of  part  of  the  goods  is  not  a  delivery  of  the 
whole,  so  as  to  divest  the  right  of  stoppage,  unless  the 
parties  so  intended.11 

Entry  at  custom-house.  So  it  appears  to  be  the  law  that 
the  entry  of  the  goods  by  the  vendee  at  the  custom-house 
at  the  port  of  delivery,  without  the  payment  of  the  duties, 
is  not  a  termination  of  the  transitus,  so  as  to  make  the 
right  of  stoppage  cease ; 12  nor  does  such  right  terminate 
unless  there  has  been  a  recognition  of  the  buyer's  title,13 
or  a  perfected  entry  in  a  bonded  warehouse.14 

Intercepting  goods.  But  if  the  vendee  intercepts  the 
goods  on  their  passage  to  him,  and  takes  possession 
as  owner,  the  delivery  is  complete,  and  the  right  of 
stoppage  gone.15 

1  James  v.  Griffin,  1  Mees.  &  W.  20 ;  2  Mees.  &  W.  663.    Manual 
possession  held  requisite:  Whitehead  v.  Anderson,  9  Mees.  &  Yvr. 
518,  534  ;  Crawshay  v.  Eades,  1  Barn.  &  C.  181, 184.    But  see  Sawyer  ?«. 
Joslin,  20  Vt.  172 ;  49  Am.  Dec.  768,  770,  773 ;  Inslee  v.  Lane,  57  N.  H. 
454, 458. 

2  Scott  v.  Pettit,  3  Bos.  &  P.  469, 472 ;  Kowe  v.  Pickford,  8  Taunt 
83,  85. 

3  Merch.  Bank.  Co.  v.  Phoenix  etc.  Co.  Law  R.  5  Ch.  D.  219 ;  22 
Eng.  Rep.  33, 46. 

4  See  Bolin  v.  Huffnagle,  1  Rawle,  9, 18 ;  Thompson  v.  Stewart,  7 
Phila.  1S7  ;  Pequeno  v.  Taylor,  38  Barb.  375.    And  consult  Van  Casteel 
v.  Booker,  2  Ex.  601, 708  ;  Schotsman  v.  Lancashire  etc.  Ry.  Co.  Law 
R.  2  Ch.  332, 336.    Compare  Turner  v.  Liverpool  Docks  Trustees,  6  Ex. 
547 ;  Berndston  v.  Strang,  Law  R.  4  Eq.  481.    But  see  Stubbs  v.  Lund, 


613  STOPPAGE  IX  TRANSITU.  §  416 

7  Mass.  453.  457, 458  ;  5  Am.  Dec.  63  ;  Ilsley  v.  Stubbs,  9  Mass.  65, 72  ;  6 
Am.  Dec.  29.  Consult  further,  Cross  v.  O'Donnell,  44  N.  Y.  661 ;  4 
Am.  Rep.  721,  724;  Newhall  v.  Vargas,  13  Me.  93,  107;  29  Am.  Dec. 
489, 494  ;  Bowley  v.  Bigelow,  12  Pick.  307 ;  23  Am.  Dec.  607  ;  Parker  v. 
M'lver,  1  Desaus.  Eq.  274,  281. 

5  Becker  v.  Hallgarten,  86  N.  Y.  167, 173, 174. 

6  Stevens  v.  Wheeler,  27  Barb.  658, 661.    Sufficiency  of  constructive 
delivery  in  general :  Chandler  v.  Fulton,  10  Tex.  2 ;  60  Am.  Dec.  188, 
191. 

7  Frazer  v.  Hilliard,  2  Strob.  309,  317. 

8  Sawyer  v.  Joslin,  20  Vt.  172, 180  ;  49  Am.  Dec.  768.    And  compare 
Cooper  v.  Bill,  3  Hurl.  &  C.  722,  729. 

9  Calahan  v.  Babcock,  21  Ohio  St.  281,  293  ;  8  Ain.  Rep.  63.    Deliv- 
ery at   nearest   railway  depot   to  place  of   destination :    Halff  v. 
Allyn,  60  Tex.  278. 

10  Sherman  v.  Rugee,  55  Wis.  346,  349. 

11  See  Kemp  v.  Falk,  Law  R.  7  App.  C.  573  ;  35  Eng.  Rep.  395,  407  ; 
Ex  parte  Cooper,  Law  R.  11  Ch.  I).  63 ;  27  Eng.  Rep.  33S,  341,  345.    And 
consult  Buckley  v.  Furniss,  17  Wend.  504,  505. 

12  Mottram  v.  Heyer,  5  Denio,  629,  632.    And  see  Northey  v.  Field, 
2  Esp.  613  ;  Nix  v.  Olive,  Abbott  on  Shipping,  377. 

13  See  exhaustive  review  of  cases  in  Wiley  v.  Smith,  1  Ont.  App. 
179  ;  affirmed,  2  Duval,  1 ;  followed,  Wilds  v.  Smith,  2  Ont.  App.  8, 12. 
And  consult  Orr  v.  Murdock,  2  Ir.  Com.  Law  Rep.  9. 

14  Fraschieris  v.  Henriques,  6  Abb.  Pr.  N.  S.  251, 255-261,  reviewing 
the  cases  and  stating  conclusions.    See,  also,  Cartwright  v.  Wilmerd- 
ing,  24  N.  Y.  521,  537.    Compare  Mohr  v.  Boston  etc.  R.  R.  Co.  106 
Mass.  67,  71 ;  Donath  v.  Broomhead,  7  Pa.  St.  301. 

15  Secomb  v.  Nutt,  14  Mon.  B.  261,  264.    And  see  2  Kent  Com.  547  ; 
Mohr  v.  Boston  etc.  R.  R.  Co.  106  Mass.  67  ;  Walsh  v.  Blakely,  9  Pacif. 
Rep.  (Mont.)  809.    Compare  Muskegon  Booming  Co.  v.  Underbill,  43 
Mich.  629.    Consent  or  refusal  of  carrier  immaterial :  Whitehead  v. 
Anderson,  9  Mees.  <fe  W.  518,  534.    And  see  Bird  v.  Brown,  4  Ex.  786  ; 
London  etc.  Ry.  Co.  v.  Bartlett,  7  Hurl.  &  N.  400.    Changing  destina- 
tion, etc. :  Hays   v.  Mouille,  14    Pa.  St.  48,  50.    Compare    Pool   v. 
Houston  etc.  Ry.  Co.  58  Tex.  134.    Release  of  attachment,,  etc. : 
Wood  v.  Yeatman,  15  Mon.  B.  270,  280. 

§  416.  By  whom  right  exercised,  —  Quasi  vendors,  etc. 
The  right  of  stoppage  in  transitu  has  been  extended  to 
quasi  vendors  or  persons  standing  in  a  similar  position 
to  vendors  ; *  and  the  right  may  be  exercised  by  a  party 
upon  whose  credit  or  with  whose  means  the  goods  are 
purchased,  and  by  whom  they  are  consigned  to  the 
purchasers  ; 2  or  by  the  seller  of  an  interest  in  an  exec- 
utory agreement  for  the  sale  of  unseparated  goods ; 3  or 
by  a  person  who  pays  the  price  of  the  goods  for  the 
buyer,  and  takes  from  him  an  assignment  of  the  bill  of 
lading  as  security  for  such  advances.4 
NEWMAKK  SALES.  — 52. 


§  417  STOPPAGE  IN  TRANSITU.  614 

Agent  without  special  authority.  And  any  agent, 
authorized  to  act  for  the  consignor,  either  generally,  or 
in  relation  to  the  consignment  in  question,  may  stop 
goods  in  transitu,  without  any  authority  to  adopt  that 
particular  measure.5 

Buyer's  countermand,  etc.  The  right  of  stoppage  in 
transitu,  though  adverse  to  the  consignee,  has  been 
held  not  defeated  by  a  writing  from  him  to  the  con- 
signor, revoking  the  order  for  the  goods,  and  declining 
to  receive  them.6 

1  Gossler  v.  Schepeler,  5  Daly,  476, 479. 

2  See  Muller  v.  Pondir,  55  N.  Y.  325  ;  14  Am.  Rep.  259,  270.    Also, 
Newhall  v.  Vargas,  13  Me.  93, 103  ;  29  Am.  Dec.  489  ;  Seymour  v.  New- 
ton,  105  Mass.  '272,  275  ;  Ilsley  v.  Stubbs,  9  Mass.  65,  71, 72 ;  6  Am.  Dec. 
29.    Compare  Jordan  v.  James,  5  Ohio,  88, 104. 

3  Jenkyns  v.  Usborne,  7  Man.  &  G.  678,  698.    But  not  by  one  hav- 
ing a  lien  for  labor  on  the  goods :  Sweet  v.  Pym,  1  East,  4,  5.    Nor 
third  party  filling  order  for  goods:  Memphis  etc.  Ry.  Co.  v.  Freed, 
38  Ark.  614: 

4  Gossler  v.  Schepeler,  5  Daly,  476.    Buyer's  surety  in  England : 
Siffken  v.  Wray,  6  East,  371,  380 ;  Imperial  Bank  v.  London  etc.  Dock 
Co.  Law  R.  5  Ch.  D.  195,  202. 

5  Reynolds  v.  Boston  etc.  R.  R.  43  N.  H.  580,  589.    But  see  Sum- 
meril  v.  Elder,  1  Binn.  106.    And  compare  Gwyn  v.  Richmond  etc. 
R.  R.  Co.  85  N.  C.  429  ;  39  Am.  Rep.  708.    Ratification  of  unauthorized 
stoppage:  Bird  v.  Brown,  4  Ex.  786,  798;  Hutchings  v.  Nunez,  1 
Moore  P.  C.  C.  (N.  S.)  243,  253, 257  ;  Newhall  v.  Vargas,  13  Me.  93, 109 ; 
29  Am.  Dec.  489, 496;  Durgy  Cement  etc.  Co.  v.  O'Brien,  123  Mass.  12, 
14.    And  see  Chandler  v.  Fulton,  10  Tex.  2  ;  60  Am.  Dec.  188, 195. 

6  Naylor  v.  Dennie,  8  Pick.  198. 205 ;  19  Am.  Dec.  319.    Stoppage 
or  rescission  by Jnsolvent  buyer  refusing  to  receive  goods,  etc. :  See 
Cox  v.  Burns,  J 

pare  Heineck 
Brev.  316, 317. 


vi  icouinmun  uy  luouivozib  uujrc*  tcAUBJ-UK    tv  ieuei  v  t;  guuuo,  em,  i    oc« 

Cox  v.  Burns,  1  Iowa,  64, 68  ;  Grout  v.  Hill,  4  Gray,  361,  366,  367.    Coni- 

gare  Heineckey  v.  Earle,  8  El.  &  B.  410,  422 ;  Byrnes  v.  Fuller,  1 
r,       •"-  — 


§  417.  Mode  of  exercising  right.  —  Demand,  notice,  etc. 
No  particular  mode  of  exercising  the  right  of  stoppage 
in  transitu  is  requisite,  but  any  means  not  criminal  are 
deemed  justifiable.1  Nor  is  it  essential  that  there  should 
be  actual  seizure  of  the  goods  before  they  come  into  the 
hands  of  the  vendee.2  But  it  is  sufficient  if  there  be  a 
demand  of  the  goods  from  the  carrier,  or  notice  to  him 
to  stop  them  and  not  to  deliver  them  to  the  buyer,  or  a 
claim  and  endeavor  to  get  the  possession.3 


615  STOPPAGE  IN  TBANSITU.  §  418 

Enforcing  by  action.  Equitable  relief  will  be  granted 
to  the  seller,  to  enable  him  to  enforce  his  right  of  stop- 
page in  transitu,  if  it  be  necessary  for  the  protection  of 
the  lien  on  the  goods.4 

Carrier's  liability.  If  a  carrier,  after  being  clearly 
notified  by  the  seller  of  goods  to  stop  them  in  transitu, 
fails  to  do  so,  and  delivers  them  to  the  buyer,  he  is  liable 
for  their  value.5 

1  See  2  Kent  Com.  543  ;  Suee  v.  Prescott,  1  Atk.  245,  250. 

2  Rucker  v.  Donovan,  13  Kan.  251, 255  ;  19  Am.  Kep.  84. 

3  See  Bucker  v.  Donovan,  13  Kan.  251,  255  ;  19  Am.  Rep.  84  ;  Rey- 
nolds v.  Boston  etc.  R.  R.  Co.  43  N.  H.  580,  591.    And  consult  2  Kent 
Com.  543 ;  O'Brien  v.  Norris,  16  Md.  122,  130 ;  Newhall  v.  Vargas,  13 
Me.  93, 109  ;  29  Am.  Dec.  489 ;  Seymour  v.  Newton,  105  Mass.  272,  275 ; 
Litt  v.  Cowley,  7  Taunt.  168, 170  ;  Kemp  v.  Talk,  Law  R.  7  A  pp.  Cas. 
573,  585;  35  Eng.  Rep.  395,  406.    Sufficient  specification  of  goods  for 
identification   required :    .Clementsen   v.  Grand  Trunk  Ry.  Co.  42 
Up.  Can.  Q.  B.  263,  270,  271.    Party  upon  whom  notice  should  be 
served :  Poole  v.  Houst.  etc.  Ry.  Co.  58  Tex.  134, 140.    Insufficiency  of 
telegram  to  consignee  to  hold  proceeds  of  pledged  property,  and  not 
the  goods  themselves:  Phelps  v.  Comber,  Law  R.  29  Ch.  D.  813,821. 
Insufficiency  of  demand  on  vendee,  while  goods  in  custody  of  custom- 
house officers :  Mottram  v.  Heyer,  5  Denio,  629,  634.    Stopping  re- 
mainder of  goods  of  which  part  sold  on  way :  Secomb  v.  Nutt,  14 
Mon.  B.  261, 266.    And  see  Buckley  v.  Furniss,  17  Wend.  504. 

4  Strahlheim  v.  Wallach,  29  Alb.  L.  J.  233, 234.    And  see  Hause  v. 
Judsou,  4  Dana,  7 ;  29  Am.  Dec.  377, 383 ;  Schotsman  v.  Lancashire  etc. 
Ry.  Co.  Law  R.  2  Ch.  App.  332,  339.    Bills  brought :  Gossler  v.  Schep- 
eler,  5  Daly,  476  ;  Rosenthal  v.  Dessau,  11  Hun,  49.    Right  not  enforci- 
ble  by  replevin  suit  for  intoxicating  liquors  illegally  sold  :  Howe  v. 
Stewart,  4Q,  Vt.  145,150.    Consignor  stopping  goods  let  in  to  defend 
suit  againstfcommission  merchant :  Chandler  v .  Fulton,  10  Tex.  2 ;  60 
Am.  Dec.  188, 190. 

5  Bloomingdale  v.  Memphis  etc.  R.  R.  Co.  6  Lea,  616, 620.    See,  also, 
The  Tigress,  32  Law  J.  Adm.  97  ;  Litt  v.  Cow  Icy,  7  Taunt.  168.    And 
consult  Pool  v.  Houst.  etc.  Ry.  Co.  58  Tex.  134.    But  compare  Mac- 
Veagh  v.  Atchinson  etc.  R.  R.  Co.  5  Pacif.  Rep.  (N.  M.)  457. 

\  418.  Mode  of  defeating  right.—  Transfer  of  bill  of 
lading.  The  right  of  stoppage  in  transitu  is  lost  if  the 
purchaser  has  sold  or  transferred  the  goods,  and  in- 
dorsed and-  delivered  the  bill  of  lading  to  a  sub-pur- 
chaser or  further  transferee  in  good  faith  and  for  value.1 

Good  faith  and  consideration.  And  the  rule  is  that  in 
order  that  the  indorsee  should  be  protected,  he  must  be 
without  notice  of  such  circumstances  as  render  the  bill 


$  418  STOPPAGE  IN  TRANSITU.  616 

of  lading  not  fairly  and  honestly  assignable.2  Yet  it  is 
deemed  sufficient  if  the  purchase  is  made  in  good  faith 
and  in  the  usual  course  of  business,  though  the  consid- 
eration of  the  sale  was  the  payment  of  an  antecedent 
debt.3 

Mere  resale.  But  a  mere  resale,  without  any  transfer 
of  the  bill  of  lading,  is  considered  not  to  defeat  the 
seller's  right  of  stoppage  in  transitu* 

Assignment  to  pay  debts.  So  the  right  of  stoppage  in 
transitu  is  not  affected  by  an  assignment  of  the  goods 
for  the  payment  of  the  vendee's  debts,  but  the  assignee 
stands,  in  this  respect,  in  the  same  position  that  his 
assignor  occupied.5 

Creditor's  levy.  And  if  goods  are  levied  on  or  seized 
by  a  creditor  of  the  purchaser  under  an  attachment  or 
execution  before  they  reach  their  destination,  this  will 
not  affect  the  seller's  right  of  stoppage.6 

Carrier's  lien  for  freight  charges.  But  the  lien  of  a 
carrier  for  his  freight  charges,  upon  the  particular  goods 
in  question,  as  distinguished  from  a  claim  for  a  general 
balance  of  account  for  freight,  is  paramount  to  the 
seller's  right  of  stoppage  in  transitu.'1 

1  See  Loeb  v.  Peters,  63  Ala.  243,  248 ;  35  Am.  Rep.  17  ;  Chandler 
v.  Fulton,  10  Tex.  2  ;  60  Am.  Dec.  188,  196.    And  consult  Walter  v. 
Boss,  2  Wash.  C.  C.  283,  2*5,  286 ;  Lee  r.  Kimball,  45  Me.  172, 174  ;  Dows 
v.  Perrin,  16  N.  Y.  325,  3",2  ;  also,  Dows  v.  Greene,  32  Barb.  490,  507,  508; 
Curry  v.  Roulston,  2  Over.  110, 113  ;  Audenried  v.  Ban  flail,  3  Cliff.  99, 
106, 107.    Compare  Cor.ard  v.  Atlantic  Ins.  Co.  1  Peters,  386,  445.    In- 
sufficiency of  merely  making  out  the  bill  of  lading  in  the  name  of 
the  purchaser:  Ex  parte  Golding  Davis,  Law  R.  1  Ch.  D.  628,  634, 
638  ;  36  Eng.  Rep.  772.    Compare  Becker  v.  Hallgarten,  86  N.  Y.  167. 
Sub-transfer  by  way  of  pledge  or  mortgage :  Chandler  v.  Fulton,  10 
Tex.  2  ;  60  Am.  Dec.  188, 199, 200.    And  see  Kemp  v.  Falk,  7  App.  Cas. 
573  ;  35  Eng.  Rep.  395 ;  Blossom  v.  Champion,  28  Barb.  217, 224.    Seller 
replevying  goods  in  transit  liable  for  conversion  :  Rawls  v.  Deshler,  4 
Abb.  N.  Y.  App.  12.    Transfer  of  custom-house  order  insufficient: 
Ives  v.  Pollak,  14  How.  Pr.  411.    Premature  transfer  of  bill  of  lading, 
or  promise  thereof,  before  document  has  come  into  possession  of 
consignee:  See  Patteson  v.  Coulton,  33  Ind.  240;  5  Am.  Rep.  199; 
Stanton  v.  Eager,  16  Pick.  467,  476  ;  Walter  v.  Ross,  2  Wash.  C.  C.  283, 
290.    Fraudulent  transfer  insufficient:  Rosenthal  v.  Dessau,  18  N.  Y. 
Sup.  Ct.  49,  50.    But  compare  Pease  v.  Gloahec,  Law  R.  1  P.  C.  219, 226. 

2  Cuming  v.  Brown.  9  East,  506,  516  ;  2  Kent  Com.  550 ;  Chandler 
v.  Fulton,  10  Tex.  2;  60 'Am.  Dec.  188,  196,  197.    Aud  see  Newhallv. 


617  STOPPAGE   IN  TRANSIT!!.  §  418 

Cent.  Pac.  R.  R.  Co.  51  Cal.  345,  350,  341 ;  21  Am.  Rep.  713 ;  Rodger  v. 
The  Comptior  d'Escompte,  Law  R.  2  P.  C.  393,  404  ;  Loeb  v.  Peters,  63 
Ala.  243,  248  ;  35  Am.  Rep.  17 ;  Stanton  v.  Eager,  16  Pick.  467,  476. 

3  Lee  v.  Kimball,  45  Me.  172, 174.    Like  effect :  Leask  v.  Scott,  Law 
-  R.  2  Q.  B.  376, 379, 380 ;  disapproving,  Rodger  v.  Comptoir  d'Escompte, 

Law  R.  2  P.  C.  393.  Held  otherwise  where  transfer  of  bill  of  lading  as 
mere  security  for  pre-existing  debt,  and  nothing  advanced,  given  up, 
or  lost  on  the  part  of  the  transferee :  See  Loeb  v.  Peters,  63  Ala.  243  ; 
35  Am.  Rep.  17  ;  Lessassier  v.  The  Southwestern,  2  Woods,  35.  But 
compare  contra.  Clementson  v.  Grand  Trunk  Ry.  Co.  42  Up.  Can. 
Q.  B.  263,  273. 

4  See  Chandler  v.  Pulton,  10  Tex.  2 ;  60  Am.  Dec.  188, 195  ;  2  Kent 
Com.  547  ;  Pattison  v.  Culton,  33  Ind.  240,  243 ;  5  Am.  Rep.  199.    But  see 
U.  S.  Wind  Engine  Co.  v.  Oliver,  16  Neb.  612, 614.    And  compare  Eaton 
v.  Cook,  32  Vt.  58,  60 ;  Hollingsworth  v.  Napier,  3  Caines,  182,  186  ;  2 
Am.  Dec.  268.    Like  doctrine  as  to  consignee  agreeing  to  transfer 
goods  not  yet  received  by  him :  Clapp  v.  Sohmer,  55  Iowa,  273.    And 
see  Muller  v.  Pondir,  55  N.  Y.  325  ;  14  Am.  Rep.  259.    Consult,  also, 
Ilsley  v.  Stubbs,  9  Mass.  65,  67 ;  6  Am.  Dec.  29.    But  compare  Walter 
v.  Ross,  2  Wash.  C.  C.  283,  286. 

5  Harris  v.  Hart,  6  Duer,  606,  627.    Like  effect :  Stanton  v.  Eager, 
16  Pick.  467,  476 ;  Arnold  v.  Delano,  4  Cush.  33,  41 ;  50  Am.  Dec.  754. 
See  Lessassier  v.  The  Southwestern,  2  Woods,  35  ;  Loeb  v.  Peters,  63 
Ala.  243,  249 ;  35  Am.  Rep.  17, 19  ;  Harris  v.  Pratt,  17  N.  Y.  249,  269; 
Chandler  v.  Fulton,  10  Tex.  2  ;  60  Am.  Dec.  188, 195. 

6  Buckley  v.  Furniss,  15  Wend.  137, 143.    And  see  Calahan  v.  Bab- 
cock,  21  Ohio  St.  281,  294 ;  8  Am.  Rep.  63.    Like  effect :  Sherman  v. 
Rugee,  55  Wis.  346,  348  ;  More  v.  Lott,  13  Nev.  376,  379,  380 ;  Blackman 
v.  Pierce,  23  Cal.  508, 511 ;  O'Neil  v.  Garrett,  6  Iowa,  480,  486  ;  Morris  v. 
Shryock,  50  Miss.  590,  597 ;  Wood  v.  Yeatman,  15  Mon.  B.  270,  279 ; 
Durgy  Cement  etc.  Co.  v.  O'Brien,  123  Mass.  12, 14;  Mississippi  Mills 
v.  Bank,  9  Lea,  314, 318  ;  21  Am.  Law  Reg.  534,  n.  537 ;  Nay  lor  v.  Dennie, 
8  Pick.  198,  204  ;  19  Am.  Dec.  319 ;  Hause  v.  Judson,  4  Dana,  13 ;  29  Am. 
Dec.  377,  381 ;  Hepp  v.  Glover,  15  La.  461 ;  35  Am.  Dec.  206, 209  ;  Bene- 
dict v.  Schaettle,  12  Ohio  St.  515. 

7  See  Potts  v.  New  York  etc.  R.  R.  131  Mass.  455  ;  Oppenheim  v. 
Russell,  3  Bos.  &  P.  42  ;  2  Kent  Com.  541.    And  consult  Rucker  v. 
Donovan,  13  Kan.  251, 256  ;  19  Am.  Rep.  84, 86. 


INDEX. 


INDEX. 


[References  are  to  sections.] 

Absolute  sales,  distinguished  from  conditional,  §  6. 
Acceptance,  several  acceptors,  31. 

assumption  of  risk  by,  97. 

inspection  and,  252. 

receipt  and,  252. 

conclusiveness  of,  in  sale  by  sample,  337. 
Acceptance  of  goods.    In  general,  257. 

supplementing  seller's  performance,  257. 

taking  and  not  merely  receiving,  etc.,  257. 

restrictions  on  obligations,  257. 

when  unnecessary,  255. 

Receipt,  distinguished  from,  statement  and  applica- 
tion of  distinction,  258. 

receipt  becoming  acceptance,  258. 
Possession,  receiving  or  taking,  259. 

buyer's  duty  concerning,  259. 

delay  in,  259. 
Inspection,  right  of,  260. 

after  receipt,  260. 

illustrations,  260. 

mode  of  examination  of  wool,  260, 
What  constitutes,  in  general,  261. 

detention  of  goods,  261. 

exercise  of  acts  of  ownership,  261. 

acts  conflicting  with  words,  261. 
Rejection,  right  of,  262. 


622  INDEX. 

Acceptance  of  goods —  Continued. 

for  divergence  from  description,  §  262. 

not  after  inspection  and  acceptance,  262. 

where  to  be  exercised,  262. 

buyer's  course  on,  263. 

getting  rid  of  custody,  etc.,  263. 

when  delay  alone  excusable,  263. 

informal  notice  of  non-acceptance,  263. 

article  to  be  satisfactory,  268. 

good  faith  of  rejection,  268. 

rejection  after  trial,  268. 

Notice  of  non-acceptance,  etc.,  seller's  waiver  of  doc- 
trine and  illustration,  264. 

seller's  agreement  to  alter  article,  264. 
Waiver,  of  notice  of  non-acceptance  by  seller,  264. 

of  buyer's  objections  to  goods,  265. 

by  delay,  265. 

receipt  after  time  limited,  265. 

on  delivery  of  instalment,  265. 

divergence  in  quality  or  quantity,  estoppel  by  final 
acceptance,  266. 

retaining  defective  goods,  etc.,  256. 

time  of  making  objection,  266. 
•Instalments,  where  delivery  by,  265,  267. 

when  rejection  not  barred,  267. 

new  terms  of  acceptance,  267. 

return  of  parcels  first  received,  267. 
Satisfactory,  article  to  be,  rejection  of,  268» 
Under  statute  of  frauds,  281-283. 

under  statute  of  frauds,  what  constitutes,  283. 
Acceptance  of  offer.     Correspondence  with  offer,  33,  34. 

unqualified  and  identical  acceptance  of  offer,  29. 

scope  of  requirement,  33. 

variation  from  offer,  33. 

place  to  which  answer  to  be  sent,  33. 


INDEX,  623 

iptance  of  offer —  Continued. 

immaterial  addition,  $  33. 

applications  of  requirement,  34. 

illustrations  of  want  of  correspondence,  etc.,  34. 

when  no  agreement,  34. 

charging  goods,  etc.,  34. 
,    Time  for,  35. 

offer  giving,  35. 

reasonable  time  where  none  fixed,  35. 

retention  of  chattel,  35. 

mailing  acceptance,  35. 

notice  of  retraction  of  offer  for  delay,  35. 

limiting,  general  rule  and  illustration,  36. 
Modes  of,  37. 

sending  letter,  37. 

through  messenger,  37. 

other  modes,  37. 

compliance  with  proposition,  37. 

uncommunicated  intention,  37. 

addressing  letter,  37. 
By  acts,  38. 

sending  goods  as  proposed,  38. 

acts  of  acquiescence,  etc.,  38. 

written  proposition  and  prior  verbal  offers,  38. 

compliance  with  order  for  goods,  38. 
Accord  and  satisfaction,  distinguished  from  sale,  28. 
Actual  delivery,  and  constructive  delivery,  222. 
Actual  receipt,  under  statute  of  frauds,  284. 
Actions,  forms  of  action  by  seller,  394. 
Agency,  distinguished  from  sale,  28. 
Agents,    stopping    goods    in    transit    without    special 
authority,  416. 

compliance  by,  with  requirement  of  memorandum, 

under  statute  of  frauds,  292. 
warranties  by,  319. 


624  INDEX, 

Animals,  soundness   or   other   qualities   of,  warranty 

concerning,  J  321. 
Apparent  ownership,  or  authority,  174, 175. 

or  authority  by  factors,  210. 
Appropriation.    In  general,  125. 

required  for  unspecified  chattels,  125. 

effect  on  prior  executory  contract,  125. 

need  of  specification,  etc.,  125. 
Scope  of  term,  126. 

conversion  of   executory  agreement  into  bargain 
and  sale,  126. 

different  senses  of  word  "  appropriation, "  126. 

judicial  extension  of  term,  126. 
Acts  of,  127. 

parties  concerned  in,  127. 

selection  of  goods  and  adoption  of  act,  127. 

putting  goods  into  buyer's  receptacles,  etc.,  127. 

conditional  appropriation  and  further  acts,  127. 
By  seller,  128. 

difficulty  in  determining  finality  of  act,  128. 

deliverable  condition  and  completion  of  delivery, 
128. 

identification,  setting  apart,  etc.,  128. 
Determining  election,  129. 

question  of  law  whether  intention  irrevocably  mani- 
fested, 129. 

general  rule  on  subject  of  election,  129. 

by  dispatch  of  goods  or  other  overt  act,  129. 

not  until  outward  act  actually  commenced,  129. 
Assent  to,  130. 

adoption  of  acts  of  selection,  separation,  etc.,  130. 

dispatching  goods,  130. 

putting  into  buyer's  receptacles,  130. 

inquiry  concerning  nature  of  conveyance,  130. 

need  of,  130. 


INDEX.  625 

Appropriation  —  Continued. 

anticipative,  implied,  etc.,  $  130. 

seller's  agency  for,  130. 

statement  of  necessity  of,  130. 

acts  of  assent,  131. 

acceptance  of  bill  of  lading,  131. 

ordering  agent  to  insure  goods,  131. 

no  authority  to  seller  or  warehouseman,  131. 
Restricted,  etc.,  132. 

appropriation  of  part,  132, 

conditional,  132. 

erroneous  appropriation,  132. 
Conformity  to  contract,  133-135. 

variance  from  order,  133. 

late  delivery,  excess  in  quantity,  different  descrip- 
tion, 133. 

sale  by  sample,  133. 

conditional  appropriation,  133. 

excess  in  quantity  of  goods,  134. 

no  binding  appropriation,  134. 

further  instances,  134. 

substitution  of  other  goods,  135, 

destroyed  goods,  135. 

rejected  goods,  135. 
Delivery,  as  showing  appropriation,  etc.,  136. 

significance  of,  136. 

possession  given  for  purposes  of  separation,  136. 

bill  of  sale,  136. 

dispatching  goods,  136. 

to  carrier,  137. 

where  contract  silent,  137. 

sufficiency  of  appropriation,  137. 

form  of  bill  of  lading,  137. 

reservation  of  control,  137. 

"free  on  board,"  138. 
NEWMAKK  SALES.  — 53. 


626  INDEX. 

Appropriation —  Continued. 

indorsement  of  bill  of  lading,  taken  to  consignor's 
order,  §  138. 

cargo  made  deliverable  to  third  party's  order,  138. 

when  not  condition  precedent,  138. 

only  part  of  goods  embarked,  138. 

buyer's  vessel  not  ready  for  goods,  138. 

low  water  preventing  transportation,  138. 

effect  on  seller's  lien,  etc.,  138. 

dispatching  goods,  139. 

as  passing  title,  139. 

delivery  to  carrier,  139. 

bullion  billed,  shipped,  etc.,  139. 

goods  sent  on  trial  or  under  conditions,  139. 
Documents,  handing  over,  140. 

bill  of  lading  and  policy  of  insurance,  140. 

payment  of  part  of  price  contingent  on  arrival  of 

goods,  140. 
Bill  of  exchange,  accepting  or  discounting,  141. 

appropriation  of  money  to  particular  goods,  141. 

discounting  bill  of  exchange  attached  to  bill  of  lad- 
ing, 141. 

Appropriation  of  payments,  273,  note  7. 
Arrive,  sale  of  goods  "  to  arrive,"  311. 
Assent,  mutual,  see  CONSENT. 

to  appropriation,  118, 130,  131. 
Assignment,  of  goods  to  pay  debts  insufficient  to  defeat 

right  of  stoppage  in  transitu,  418. 
Sale  or,  7. 

transfer  of  any  kind  of  property  or  interest,  7. 

transfer  of  interest  in  land,  7. 

transfer  of  goods  and  chattels,  7. 

sale  or  assignment  for  benefit  of  creditors,  7. 
Auction  sales,  either  voluntary  or  involuntary,  6. 

covered  by  statute  of  frauds,  275. 


INDEX.  627 

Average  sample,  §  333. 

Avoidance,  of  contract  of  sale,  grounds  of,  397. 
Baileos,  unauthorized  by,  184. 

Bailment.    See  RESALE  ;  MILLERS  ;  GRAIN  ELEVATORS. 
Sale  or,  14,  15. 

in  general,  14. 

transfer  of  special  property,  14. 

restoration  of  identical  or  equivalent  thing,  14. 

applications  of  distinction,  14. 

intrustment  to  agents  or  factors,  14. 

admission  of  title  in  party  delivering  goods,  14. 

arrangements  with  millers,  15. 

deposits  in  grain  elevators,  16. 

delivery  for  resale,  17. 
Barter,    See  EXCHANGE. 

definition  of,  11. 

distinguished  from  sale,  11. 
Bill  of  exchange,  for  price  of  goods  sold  and  bill  of  lading, 

disposition  of,  149. 

Bill    of   lading,    form   of,    as    affecting   appropriation, 
137. 

to  seller's  order,  147. 

transmission  to  buyer  of  indorsed,  150. 

transmission  to  secure  advances,  151. 

transmission  to  agent,  152. 

in  general,  212. 

nature  and  effect,  213. 

delivery  of,  243. 

keeping,  as  indicative  of  acceptance  under  statute  of 
frauds,  283. 

transfer  of,  as  defeating  right  of  stoppage  in  transitu, 

418. 
Bill  of  sale,  as  appropriation  transferring  title,  136. 

delivery  of,  242. 

as  against  third  parties,  246. 


628  INDEX. 

Bona    fide   purchasers.      General    doctrines    concerning, 
§170. 

divesting  of  property,  170. 

no  transfer  of  better  title,  etc.,  170. 

purchaser  gets  only  seller's  title,  170. 

exceptions  to  general  rule,  170. 

judicial  sales  governed  by  general  rule,  173. 

no  warranty  of  title,  173. 
Ownership,  title  only  from  owner,  etc.,  171. 

goods  in  possession  of  wrong-doer,  171,  172. 

thing  not  yet  owned,  etc.,  171. 

ostensible  ownership  or  authority,  175. 

possession  alone,  175. 

indicia  of  title,  175. 

estoppel,  etc.,  175. 
Wrongful  possession,  goods  in  another's,  171, 172. 

sale  by  wrongful  possessor,  172. 

sale  by  rightful  owner,  now  and  formerly,  172. 
Exceptions,  apparent,  to  general  doctrine,  174. 

fraudulent  sales,  174. 

reserving  title,  etc.,  174. 

conferring  apparent  ownership,  etc.,  174» 
Stolen  goods,  purchase  of,  176. 

no  transfer  of  title,  176. 

liability  for  conversion,  176. 

good  faith  of  purchaser,  176. 

character  of  larceny,  176. 

agent  or  bailee,  liability  of,  177. 

transfer  by  auctioneer,  broker,  etc.,  177. 

return  to  depositary,  177. 

markets  overt  in  England,  178. 

nature,  place  of  operation,  good  faith,  etc.,  178. 

extent  of  exemption,  179. 

restrictions  on  protection,  179. 

transfers  pending  conviction  of  offender,  179. 


INDEX.  629 

Bona  fide  purchasers  —  Continued. 

transfers  out  of  market  overt,  §  179. 

institution  not  recognized  in  this  country,  180. 

extent  of  repudiation,  180. 

sales  under  execution,  180. 
Lost  chattels,  181. 

no  title  in  purchaser,  181. 

certificates  of  stock,  181. 
Trespassers,  sales  by,  182. 

chattels  obtained  by  robbery,  182. 

severed  objects,  182. 

mistake,  182. 

illegal  levy  and  sale,  183. 

stranger's  goods,  183. 

exempt  property,  183. 

void  and  voidable  sales,  183. 
Bailees,  unauthorized,  sales  by,  in  general,  184. 

in  various  kinds  of  bailment,  184. 

bailment  with  privilege  of  purchase,  184. 
Pledges,  transfers  of,  unforfeited,  185. 

sale  without  restriction,  185. 

repledge  for  greater  amount,  185. 

sales    of    forfeited    pledges,     mode    of    making, 
186. 

irregularity  in,  186. 

Delivery  of  goods  for  sale  and  disposal  for  his  own  use 
by  bailee  or  agent,  187. 

or  departure  from  orders,  187. 
Factor,  transfer  by,  188. 

pledge  or  exchange,  188. 

Factors'  Acts,  188. 

Title,  lack  of,  of  party  from  whom  purchase  is  made, 
189. 

such  purchase  as  constituting  conversion,  189. 

liability  of  auctioneer,  189. 


Bona  fide  purchasers  —  Continued. 

state  of,  governs  in  successive  transfers,  $  190. 

voidable  or  defeasible,  purchase  from  one  having, 
192. 

impeachment  for  fraud,  192. 

infant's  voidable  title,  192. 

Demand,  before  conversion  suit  against    purchaser 
from  party  lacking  title,  191. 

opposing  views  of  necessity  of,  and  prevalence  of, 

191. 
Condition  subsequent,  sale  with,  193. 

title  of  innocent  purchaser  from  vendee,  193. 

right  of  repurchase,  revesting  of  title,  option  to  re- 
turn, etc.,  193. 

precedent,  sale  with,  nature  of  transaction,  position 
of  bona  fide  purchasers,  etc.,  194. 

delivery  as  waiver  of,  not  decisive ;  difference  of 
opinion  concerning  protection  of  bona  fide  pur- 
chasers, 195. 

Deliver y,  as  waiver  of  condition,  195. 
Possession,  seller's,  196 

custodian's  second  sale,  196. 

restored  documents  of  title,  196. 
ffiaudulent  vendees,  transfers  by,  197. 

protection  of  bona  fide  purchaser,  and  exceptional 
character  of,  197. 

voidable  title,  etc.,  197. 

superior  equity  of  innocent  purchaser  from ; 
grounds  of  doctrine  discussed,  198. 

estoppel  of  owner;  statement  and  discussion  of 
doctrine,  199. 

voidable  or  defeasible  title  ;  derivation  of  doctrine, 
analysis,  etc.,  200. 

title  of  innocent  purchaser,  analysis  of,  201. 

title  of ;  result  of  analysis,  etc.,  202. 


INDEX.  631 

Bona  fide  purchasers —  Continued. 

statements  of  doctrine  of  protection  of  bona  fide 

purchaser,  as  generally  followed,  and  under  New 

York  view,  §  203. 
prevalence  of  exemption  of  bona  fide  purchaser,  on 

various  or  no  definite  grounds  in  United  States 

and  in  England,  204. 
limitations  upon  exemption,  205. 
in  case  of   purchaser  from  fraudulent  possessor, 

205. 

notice  or  suggestion  of  fraud,  205. 
purchase  for  value,  205. 

»       false  pretenses,  obtaining  goods  by,  English  legis- 
lation and  American  view,  206. 
Under  conditional  sales,  with  delivery  and  reservation 

of  title,  301. 

Broker's  memorandum,  under  statute  of  frauds,  293. 
Buy,  who  may,  45. 
Buyer,  seller  and,  45. 

countermanding  delivery,  relation  to  stoppage  in 

transitu,  416. 
Buyer's  duties,  in  general,  255. 

acceptance  and  payment,  255. 

obligations  not  always  passive,  255. 

when  acceptance  unnecessary,  relation  to  delivery, 

etc..  255. 

fetching  goods,  256. 
Buyer's  remedies,  397-403. 
In  general,  397. 
on  sale  by  sample,  340. 
leading  grounds  for,  397. 
application  of  remedies,  397. 
avoidance  of  contract,  397. 
non-conformity  to  executory  contract,  397. 
liability  for  price,  397. 


632  INDEX. 

Buyer's  remedies  —  Continued. 
Failure  to  deliver,  damages  for,  §  .398. 

general  rule,  398. 

where  price  paid,  398. 

nominal  damages,  398. 

special  damages,  398. 

loss  of  profits  on  sub-sale,  398. 

cost  of  replacing  goods,  398. 

nearest  practicable  market,  398 

restrictions  on  recovery  of  damages  for,  399. 

notice  of  exceptional  circumstances,  etc.,  399. 

knowledge  of  sub-contract,  etc.,  399. 

suit  for,  400. 

prerequisites  of  demand,  offer,  etc.,  400. 

pleadings,  evidence,  etc.,  400. 
Where  title  in  buyer,  401. 

remedies  as  owner,  401. 

specific  performance,  401» 
Delay  in  delivery,  402. 

choice  of  remedies,  402. 

where  delivery  in  instalments,  402. 
Divergence  of  goods  from  contract,  403. 

quality  of  unascertained  goods,  403. 

variance  from  description,  403. 

breach  of  warranty,  403. 

objections  to  articles,  403. 
Carrier,  delivery  to,  137,  138,  248-250. 

detention  for  charges  of,  relation  to  stoppage  in 
transitu,  414. 

liability  for  not  obeying  notice  to  stop  goods,  417. 

lien  for  freight  charges,  paramount  to  right  of  stop- 
page in  transitu,  418. 

and  other  middlemen,  intervention  of,  in  relation 
to  acceptance  and  receipt  under  statute  of  frauds, 
285. 


INDEX.  633 

,  payment  in,  \  270. 

payment  in  other  medium  than,  273. 
Cash  sales,  as  distinguished  from  credit,  6,  note  19. 
Caveat    emptor,  maxim  regulating  title    in  successive 
transfers,  170. 

applies  to  purchaser  at  judicial  sale,  173. 

in  relation  to  fraud  on  buyer,  355. 

in  relation  to  warranty  of  quality,  331. 
Champerty,  and  maintenance,  371. 
Choses  in  action,  relation  to  statute  of  frauds,  277. 
Classification,  of  sales,  6. 

varying  with  point  of  view,  6. 

voluntary  and  forced,  or  judicial,  6. 

private  and  public,  6. 

executory  and  executed,  6. 

oral  and  written,  6. 

absolute  and  conditional,  6. 

illegal  and  otherwise,  6. 

fraudulent  and  otherwise,  6. 

with  warranty  and  otherwise,  6. 

express  and  implied,  6. 

entire  and  severable,  6. 

cash  or  credit,  6,  note  19. 

of  specified  and  of  unspecified  chattels,  6,  note 

19. 

Club,  sale  of  liquor  by,  13.    See  LIQUOR. 
Colorable  sale,  30. 

Combinations,  concerning  commodities,  368. 
Common  counts,  for  goods  sold,  when  proper,  394. 
Condition,  delivery  as  waiver  of,  and  relation  to  bona 

fide  purchasers,  195. 

Condition  precedent,  sale  with,  position  of  bona  fide  pur- 
chasers, etc.,  194. 

definition  and  illustration,  294. 

prerequisite  of  performance  of,  294,  295. 


634  INDEX. 

Condition  precedent —  Continued. 
payment  as,  §  299. 
in  sales,  examples  of,  307. 
Condition  subsequent,  sale  with;  position  of  bona  fide 

purchasers,  etc.,  193. 
definition  and  illustration  of,  294, 
in  sales,  examples  of,  307. 
Conditional  appropriation,  132,  133,  143. 
Conditional  sales,  as  distinguished  from  absolute,  6. 
Delivery  under,  19. 
payment  as  condition  precedent,  19. 
transferable  interest,  etc.,  under  Pennsylvania  doc- 
trine, 19. 

Conditions,  in  general,  294. 
nature  and  kinds,  294. 
conditions  precedent,  concurrent,  and  subsequent, 

with  illustrations,  294. 
in  sales,  295. 

absolute  or  conditional  sale,  etc.,  295. 
condition  or  warranty,  295. 
prerequisite  of  performance  of  condition  precedent, 

295. 

act  of  third  person,  295. 
Performance  of  conditions,  294-298. 
precedent,  prerequisite  of,  294,  295. 
impossibility  of,  296. 

time  and  place  of,  stipulations  concerning,  297. 
notice,  297. 

Impossibility  of  performance,  in  general,  296. 
actual  impossibility,  298. 
legal  impossibility,  296. 
act  of  God  or  human  agency,  296. 
Time  and  place  of  performance,  stipulations  concern- 
ing each,  297. 
Notice^  when  requisite,  298. 


INDEX.  635 

Conditional  sales —  Continued. 

reasonable  time  after,  $  298. 

terminating  agreement,  298. 
Payment^  as  condition  precedent,  299. 

transfer  of  title  and  risk,  299. 

payment  and  delivery  as  concurrent  conditions, 
299. 

performance  or  waiver  of  conditions,  299. 

delive^  with  reservation  of  title,  299. 

condition  sustained  despite  delivery,  300. 

where  delivery  through  agents,  300. 

delivery  under  expectation  of  payment,  300. 

credit,  notes,  etc.,  300. 

reservation  of  title,  300. 

rights  of  purchasers  and  creditors,  301. 

attaching  creditors,  301. 

bona  fide  purchasers,  301. 

special  views,  301. 

registration  acts,  301. 
Waiver,  estoppel,  etc.,  302. 

effect  and  proof  of  waiver,  302. 

existence  of  waiver ;  estoppel  of  seller  by  delivery 
of  goods  or  documents,  302. 

by  delivery,  303. 

if  unqualified  and  unconditional,  303. 

presumption  of,  303. 

inference  of  conditional  delivery,  303. 

slight  priority  of  delivery,  303. 

seller's  delay,  etc.,  304. 

requirement  of  reasonable  diligence,  304. 

insufficiency  of  mere  negligence,  304. 

justification  of  delay,  304. 
Resumption  of  possession,  305. 

notice,  etc.,  as  prerequisite,  305. 

on  refusal  of  payment,  305. 


636  IXDEX. 

Conditional  sales  —  Continued. 
Instalment  plan,  sales  on,  in  general,  §  306. 

discrimination  from  similar  transactions,  306. 

special  provisions,  306. 

forfeiture  of  partial  payments,  306. 
Various  conditions,  in  sales,  307. 

conditions  subsequent,  307. 

option,  buyer's,  307. 

satisfactory,  article  to  be,  307. 

conditions  precedent,  307. 

prerequisites  to  transfer  of  title,  307. 
/Sales  "  on  trial,"  in  general,  308. 

time  for  return  of  goods,  308. 

notice  and  return,  308. 

consumption  of  goods,  308. 
Return  goods,  right  to,  309. 

option  to  keep  or  to  return,  309. 

variation  of  alternative,  309. 

similar  transactions,  309. 

independent  covenant  and  failure  to  return,  309. 
Sale  or  retui*n,  310. 

status  of  title,  310. 

effect  of  failure  to  return,  310. 

distinguished  from  similar  agreements,  310. 

exercise  of  privilege  of  return,  310. 

injury  to  chattel,  310. 
Sale  of  goods  "  to  arrive,"  in  general,  311. 

double  condition  precedent,  311. 

American  views,  311. 

notice  of  name  of  ship,  311. 
Sample  or  description,  sale  by,  312. 

comparison  of  bulk  with  sample,  312. 

answering  description  or  order,  312. 

engagement   as  condition  rather   than  warranty, 
312. 


. 


637 

Conditional  sales  —  Continued, 

different  views,  §  312. 

need  of  performance  of  undertaking,  312. 
Securities,  genuine  character  of,  313. 

seller's  obligation  concerning,  313. 

condition  or  warranty,  313. 

effect  of  non-compliance,  313. 

failure  to  furnish  stipulated  securities,  314. 

when  there  is  a  failure  of  consideration,  314. 

thing  not  entirely  worthless,  314. 

getting  intended  subject-matter,  314. 

features  not  covered,  314. 
Conditional  warranty,  322. 
Conditions  in  general,  294. 

in  sales,  295,  307,  299-314 

performance ;  impossibility,  time,  and  place  of,  296, 
297. 

notice,  298. 
Conditions  concurrent,  definition,  294. 

readiness  to  fulfill,  294. 

payment  and  delivery  as,  299. 

Consent.    See   ACCEPTANCE;    CONTRACT   BY   LETTER; 
OFFER. 

In  general,  29. 

essential  to  contract,  29. 

may  be  implied,  29. 

unqualified  and  identical  acceptance  of  offer,  29. 

withdrawal  of  offer  and  giving  of  time,  29. 

variation  from  offer  as  counter-proposition,  29. 

contract  by  letter,  29. 
When  lacking,  30. 

misunderstanding  on  material  matter,  30. 

failure  to  fully  agree  on  terms,  30. 

colorable  sale,  30. 

bantering  conversation,  30. 
NEWMARK  SALES.  — 54. 


638  INDEX. 

Consent —  Continued. 
Parties  consenting,  \  31. 

personality  of  contracting  party  important,  31. 

retaining  goods  bought  from  successor,  31. 

unauthorized  assumption  as  to  buyer's  position,  31. 

several  acceptors,  31. 
Offer  to  sell,  32. 

Correspondence  of  acceptance,  with  offer,  33,  34. 
Time  for  acceptance,  35,  36. 
Modes  of  acceptance,  37,  38. 
Contract  by  letter,  39,  40. 
Finality  of  arrangement,  41,  42. 

in  contract  by  correspondence,  41. 

test  question,  41. 

determining  circumstance,  41, 

governing  principle,  41. 

written  contract  to  be  prepared,  41. 

contract  not  specifically  enforcible,  41. 

offer  to  purchase,  41. 

acceptance  of  tender  not  sufficient,  etc.,  41. 

reduction  to  writing,  or  affixing  of  signature,  as 
requisite  to  valid  contract,  42. 

estoppel  to  object  to  want  of  such  reduction,  42. 
Contract  by  telegraph,  43  ;  see  that  title. 
Implied  sales,  44 ;  see  that  title. 
Consideration.   See  PRICE  ;  FAILURE  OF  CONSIDERATION. 

of  contract  of  sale,  4. 

valuable  consideration,  4. 

money  price,  and  standard,  4. 

in  various  aspects,  4. 

fair,  4. 

present,  4. 

failure  of,  386-390. 

of  transfer  of  bill  of  lading  to  defeat  right  of  stop- 
page in  transitu,  418. 


INDEX.  639 

Consignment.    Sale  or,  §  25. 

contract  importing  consignment,  and  not  sale,  25. 

no  relation  of  principal  and  agent,  25. 

sale  and  not  consignment,  25. 

agent  becoming  purchaser,  25. 

value  in  invoice,  25. 

word  "consign,"  25. 

consignments  to  cover  advances,  25. 
Remedies  in  such  transactions,  26. 

action  for  goods  sold  and  delivered,  26. 

action  against  carrier,  26. 

evidence  in  replevin  suit,  26. 
Constructive  delivery,  241. 

and  actual  delivery,  222. 

Construction  of  correspondence,  contract  arising  from  cor- 
respondence, 40. 

assent  to  latest  proposition,  40. 

distinct  proposition   and   unqualified  acceptance, 
40. 

ambiguous  document  or  letter,  40. 

meaning  of  written  offer  to  sell,  40. 

evidence  to  show  sale,  40. 

preliminary  negotiation  or  final  agreement,  41. 
Contract  by  letter,  29,  39. 

mailing  acceptance  binds  bargain,  39. 

ground  of  doctrine,  39. 

delay  or  failure  in  receipt  of  acceptance,  39. 

delay  in  delivery  of  offer  or  acceptance,  39. 

intervention  of  friend  or  agent,  39. 

construction  of  correspondence,  40;  see  that  title. 
Contract  by  telegraph,  permissibility  and  proof,  43, 

answer  to  letter,  etc.,  43. 

acceptance  as  closing  contract,  43. 

qualified  or  conditional  acceptance,  43 

construction,  43. 


640  INDEX. 

Contract  "by  telegraph —  Continued. 

receipt  of  acceptance,  \  43. 

speedy  acceptance  required,  43. 

evidence  of  .oral  acceptance,  43. 
Conversation,  bantering,  30. 

Correspondence,    See  CONTRACT  BY  LETTE'R  ;  CONSTRUC- 
TION OF  CORRESPONDENCE. 
Cotenancy,  quasi,  105. 
Countermand,  buyer's,  in  relation  to  stoppage  in  transitu, 

416. 
Credit,  waiting  for  expiration  of,  395. 

giving ;  relation  to  seller's  lien,  409. 
Credit  sales,  226,  272. 

as  distinguished  from  cash,  6,  note  19. 
Creditors,  sufficiency  of  delivery  against,  247. 

attaching,  rights,  where  delivery  under  conditional 

sale,  301. 
Custody,  of  goods,  in  relation  to  actual  receipt  under 

statute  of  frauds,  284. 
Custom-house,    entry   at,    in    relation    to    stoppage    in 

transitu,  415. 
Damages,  for  non-acceptance,  392. 

for  failure  to  deliver,  398,  399. 
Defects,  patent,  320. 

notice  of,  323. 

latent,  whether  warranty  against,  349,  350. 
Defeasible  title,  192.  • 

analysis  in  cases  of  fraudulent  transfers,  200. 
Definitions.     Of  sale,  1. 

of  general  character,  1. 

by  text-writers  and  commentators,  1. 

defects  of  ordinary  definitions,  1. 

words  constituting  sale  of  a  chattel,  1. 

technical  limitation  to  personalty,  2. 

as  contract  for  transfer,  2. 


INDEX.  641 

Definitions  —  Continued. 

as  transfer  of  interest,  §  2. 

usual  meaning,  2. 
Deliverable  state,  putting  into,  86.    See  under  SPECIFIED 

CHATTELS,  SALES  OF. 
Delivery,  to  manufacturer,  18. 

under  conditional  sale,  19. 

acts  to  be  done  after,  94. 

duty  and  agreement  to  deliver,  95. 

effect  of,  96. 

of  unidentified  goods,  102. 

of  manufactured  chattel,  need  of,  117. 

as  showing  appropriation,  etc.,  136-139. 

"free  onboard,"  138. 

to  carrier,  effect  of,  146. 

on  board  buyer's  vessel,  147. 

stipulations  concerning,  163. 

title  to  undelivered  chattel,  164. 

sufficient  to  pass  title,  165. 

as  prerequisite  to  transfer  of  title,  166. 

not  such  prerequisite,  167. 

of  goods  for  sale,  and  conversion  thereof,  187. 

as  waiver  of  condition,  and  relation  to  bona  fide 
purchasers,  195. 

under  statute  of  frauds,  280. 

with  reservation  of  title,  299. 

condition  of  payment  sustained  despite,  300. 

rights  of  purchasers  and  creditors,  301. 

future,  369. 

damages  for  failure  to  deliver,  398,  399. 

suit  for  failure  to  deliver,  400. 

delay  in  buyer's  remedies  where,  402. 

withholding  or  countermanding,  408. 

actual,  as  ending  right  of   stoppage  in   transitu, 
415. 


642  INDEX. 

Delivery  —  Continued. 

constructive,  as  ending  right  of  stoppage  in  transitu, 
I  415. 

terminating  transit  and  right  of  stoppage,  415. 
Scope  of  term,  in  execution  of  contract,  221. 

as  denoting  transfer  of  title  and  of  possession,  221. 

appropriation  of  chattel,  221. 

in  relation  to  statute  of  frauds,  221. 

as  including  receipt,  221. 

Actual  and  constructive,  statement  of  distinction,  222. 
Seller's   custody,  where  goods  not   taken  away  by 

buyer,  223. 

Transfer  of  title  without,  in  England  and  in  United 
States,  224. 

right  of  possession,  224. 

delivery  as  passing  title,  224. 

under  Louisiana  law,  224. 
Delivery  and  payment,  as  concurrent,  225. 

contemporaneous  character,  225. 

allegations  of  readiness,  etc.,  225. 
Credit  sale,  226. 

delivery  under  promise  to  pay,  226. 

buyer's  right  of  possession,  226. 
Under  expectation  of  payment,  227. 

waiver  by  absolute  delivery,  227. 

seller's  right  to  reclaim  goods,  227. 
Duty  to  deliver,  228. 

not  in  absence  of  agreement,  228. 

goods  not  taken  by  buyer,  228. 

under  agreement,  228. 

fetching  goods,  as  buyer's  duty,  246. 
Place  of  delivery,  229. 

place  of  sale,  or  other  place,  229. 

fixed  by  agreement,  229. 

designation  of,  230. 


INDEX.  643 

Delivery  —  Continued. 

buyer's  address,  §  230. 

seller's  readiness,  230. 
Time  of  delivery,  231. 

failure  to  comply  with  agreement  concerning,  231. 

demand  under  option  sale,  231. 

obligation  to  deliver  at  specified  time,  231. 

"forthwith,"  uas  soon  as  possible,"  etc.,  231. 

reasonable  time,  232. 

when  no  time  set  for  delivery,  232. 

determination  of,  232. 

paroi  evidence  concerning,  232. 

circumstances  of  contract,  232. 

divisions  of  time,  233. 

"months,  days,"  hour  of  last  day,  233. 

computation  of  time,  234. 

days  excluded,  234. 

"to,"  "on,"  etc.,  235. 
Quantity  delivered,  235. 

excessive  quantity,  235. 

less  than  stipulated  quantity,  235. 

contract  for  indefinite  quantity,  236. 

construction  favorable  to  seller,  23G. 

words  of  estimate  and  expectation,  236. 

partial  delivery  under  entire  contract,  237. 

parcels  deliverable  from  time  to  time,  237. 

delivery  by  instalments,  238. 

modification  of  contract,  238. 

need  'of  payment,  238. 

entire  or  severable  contract,  238. 
Mode  of  making,  239. 

unspecified  and  specified  chattels,  239. 

tender  of  thing  sold,  239. 

ponderous  articles,  239. 

symbolical  or  constructive  delivery,  239. 


644  INDEX. 

Delivery  —  Continued. 

goods  in  buyer's  possession,  §  239. 

mode  of  performance,  incidents,  etc.,  254. 
Symbolical  delivery,  in  general,  240. 

bills  of  sale  and  of  lading,  240. 

cumbrous  property,  240. 
Constructive  delivery,  in  general,  241. 

bailee  for  buyer,  241. 

order  on  borrower,  241. 

of  part  for  whole,  241. 

giving  opportunity  to  take  possession,  241. 
Bill  of  sale,  delivery  of,  242. 

bill  of  sale  of  vessel  at  sea,  242. 

where  possession  of  goods  given,  242. 
Bills  of  lading,  delivery  of,  242,  243. 

as  compliance  with  statute  of  frauds,  243. 

as  transferring  title,  243. 

reservation  of  control,  243. 
Delivery  orders,  transfer  of  various  instruments  in 

nature  of,  242. 

Warehouse  receipts,  delivery  of,  as  symbolical  delivery 
of  property,  244. 

consent  of  bailee,  244. 
Failure  to  deliver,  excuses  for,  245. 

refusal  of  tender,  245. 

insolvency  of  purchaser,  245. 

freezing  of  river,  245. 
Third  parties,  relation  to,  246. 

more  required  than  between  the  original  parties,  246. 

bill  of  sale,  severance  of  grass,  246. 

delivery  to  transfer  title,  246. 

notice  to  custodian,  246. 
Creditors,  sufficiency  of  delivery  against,  247. 

kind  of  possession  necessary  to  be  given,  247. 

setting  portion  apart,  247. 


INDEX.  645 

Delivery  —  Continued. 

thing  not  in  existence,  $  247. 

delivery  before  levy,  247. 

other  than  actual,  247. 
Carrier,  delivery  to,  248. 

putting  goods  in  transit,  248. 

as  delivery  to  buyer's  agent,  248. 

buyer's  directions,  etc.,  248. 

delivery  of  goods  and  mailing  of  documents,  248. 

delivery  at  wharf,  etc.,  248. 

place  where  sale  complete,  248. 

seller's  duties  concerning  such  delivery,  249. 

precautions  for  transportation,  mode  of  conveyance, 
etc.,  249. 

notice  of  consignment,  249. 

seller  consigning  to  himself,  249. 

directions  concerning  transportation  in  general,  250. 

changing  directions,  etc.,  250. 

Warehouseman,  delivery  to,  of  goods  boxed,  marked, 
etc.,  251. 

warehouseman  as  custodian  for  seller,  251. 
Inspection  and  acceptance,  252. 

receipt  and  acceptance,  252. 

buyer's  right  of  inspection,  252. 
Title  to  pass,  253. 

necessity  of,  253. 

buyer's  possession  for  purposes  of  separation,  253. 

when  question  of  fact,  253. 

though  pretense  of  right  to  return,  253. 
Various  points  concerning,  254. 
Proof  of,  shipping  article,  etc.,  254. 

allowing  manufactured  article  to  remain,  etc.,  254. 

province  of  court  and  jury,  254. 

K     Usage,  proof  of,  254. 
Performance,  mode  of,  254. 


646  INDEX. 

Delivery  orders,  jj  219. 

seller's  lien  after  giving,  408. 

transfer  of  various  instruments  in  nature  of,  242. 
Demand,  before  conversion  suit  against  purchaser  from 
party  lacking  title,  191. 

or  request  to  deliver  as  prerequisite  to  suit  for  fail- 
ure to  deliver,  400. 

Deposits,  in  grain  elevators,  see  GRAIN  ELEVATORS. 
Description.    See  WARRANTY  OF  QUALITY. 

sales  by,  341-345. 

sale  by  sample  or,  312. 

words  of,  345. 

variance  from,  return  of  goods  for,  403. 
"  Differences,"  payment  of,  369. 
Disaffirming  transaction,  by  infants,  54. 
Dispatching  goods,  as  indicative  of  appropriation,  136, 

139. 

Distinctions,  between  sales  and  other  transactions,  see 
SIMILAR  TRANSACTIONS. 

delivery  to  manufacturer,  18. 

delivery  under  conditional  sale,  19. 

privilege  of  purchase,  20. 

privilege  of  return,  21. 

sale  or  lease,  22. 

sale  or  pledge,  23. 

sale  or  mortgage,  24. 

sale  or  consignment,  25. 

sale  or  payment,  27. 

sale  or  accord  and  satisfaction,  28. 

sale  or  contract  to  manufacture  under  statute  of 
frauds,  28. 

between  sale  and  agency,  28. 

between  sale  and  loan,  28. 

between  sale  and  trust,  28. 

between  sale  and  security,  28, 


INDEX.  647 

Documents  of  title.    In  general,  signification  as  covering 
instruments  of  authentication ;  objections  to  ex- 
pression, etc.,  §  211. 
Bills  of  lading,  for  symbolical  delivery,  212. 

divesting  of  seller's  lien,  212. 

relation  to  stoppage  in  transitu,  212,  213. 

transfer  of,  212,  213. 

in  duplicate  or  triplicate,  212. 

reservation  of  jus  disponendi,  212. 

revocation  of  consignment,  212. 

nature  and  effect,  213. 

represent  property,  213. 
Shipping  receipts,  214. 

prerequisite  to  vesting  of  title  in  consignee,  214. 

forwarded  too  late,  etc.,  214. 
Ship-owners,  estoppel  of,  English  rule  and  conflicting 

American  views,  215. 
Warehouse  receipts,  216. 

in  England,  216. 

under  local  usage,  216. 

as  documents  of  title,  216. 

statutory  regulation,  216. 

negotiability,  216. 

for  bonded  goods,  216, 
In  general,  217. 

enactments  concerning,  217. 

assimilation  to  bills  of  lading,  217. 

protection  of  pledge,  etc.,  217 

lost  or  stolen  documents,  217. 

misdescription  in,  217. 

statutory  scope  of  term,  under  English  Factors' 
Acts,  218. 

cash  receipts,  218. 
Delivery  orders,  nature  and  effect,  219. 

indorsement  to  sub-vendee,  219. 


648  INDEX. 

Documents  of  title —  Continued. 

Dock  warrants,  etc.,  distinguished  from  bills  of  lading, 
§220. 

effect  of  indorsement,  220. 
Dock  warrants,  and  similar  instruments,  220. 
Drunkards.    See  INTOXICATED  PERSONS. 
Earnest,  under  statute  of  frauds,  379. 
Election,  of  remedies  by  seller,  394. 

influencing  or  carrying,  370. 
Elements,  of  contract  of  sale,  3. 

enumeration  of,  3. 

at  common  law,  3. 

under  civil  law,  3. 
Elevators.    See  GRAIN  ELEVATORS. 
Entire  contracts  of  sale,  as  distinguished  from  severable, 

6. 
Equity,  superior,  of  innocent  purchaser  from  fraudulent 

vendee,  198. ' 
Estoppel,  of  custodian  of  goods,  106. 

of  seller,  168. 

of  warehouseman,  etc.,  169. 

of  owner  of  goods,  as  against  bona  fide  purchaser 
from  fraudulent  vendee,  198,  199. 

of  ship-owners,  215. 

of  seller  under  conditional  sale  by  delivery  of  goods 
or  documents,  302. 

of  seller  to  assert  his  lien,  410. 
Examination,  of  bulk  in  sales  by  sample,  opportunity 

for,  335. 
Exchange.    Sale  or,  11. 

exchange  and  barter  denned,  11. 

difference  in  mode  of  payment  of  consideration,  11. 

fixed  price  as  criterion  of  sale,  11. 

estimation  by  money  standard,  11. 

goods  to  be  paid  for  in  goods  at  certain  price,  11. 


•  INDEX.  649 

Exchange —  Continued. 

money  as  part  of  consideration,  §  11. 

difference  in  remedies,  12. 

averment  of  " sale "  for  "exchange,"  12. 

common  counts  or  special  agreement,  12. 

equivalent  other  than  money,  12. 
Executed  sales,  distinguished  from  executory,  6. 
Executory  agreement,    See  EXECUTORY  SALES. 
Executory  contracts,  warranty  on,  315. 

of  sale  by  sample,  warranty  surviving  acceptance, 
337. 

and  executed  contracts,  relation  to  illegality,  362, 
366. 

remedies  for  want  of  conformity  to,  397. 
Executory  sales,  relation  to  statute  of  frauds,  275. 

distinguished  from  executed,  6. 

sale  or  executory  agreement,  9. 

agreement  to  sell  and  buy,  etc.,  9. 

present  or  postponed  transfer  of  title,  9* 

difference  in  buyer's  remedies,  9. 
In  general,  70. 

present  transfer  of  title  in  bargain  and  sale,  70. 

executory  agreement,  where  postponement  of  trans- 
fer of  title,  70. 

contract  with  right  of  inspection,  etc.,  70. 

conveyance  and  contract,  70. 

distinctions  in  scope  and  remedies,  70. 

two  senses  of  executed  sale,  70. 
Intention  to  transfer  title,  71. 

passing  or  retention  of  title,  71. 

intention  governs,  71. 

manifestation  and  ascertainment,  71. 

province  of  court  and  jury,  71. 

further  act  to  be  done  to  goods,  71. 

goods  ready  for  delivery,  etc.,  71. 
NEWMABK  SALES. —  55. 


650  INDEX, 

Executory  sales  —  Continued. 
meeting  of  minds,  §  71. 
difficulty  in  determining  intention,  72. 
in  general,  72. 
slight  circumstances  sometimes  deemed  important, 

72. 

Passing  of  title  and  risk,  73. 

sale  of  specific  ascertained  goods  as  passing  title,  73. 
change  of  risk,  73. 

goods  identified  but  not  separated,  73. 
Something  to  be  done,  74. 
presumption  in  favor  of  postponing  transfer  of  title, 

74. 

statement  of  general  doctrine,  74. 
unperformed  operation,  74. 
limitations  of  general  doctrine,  74. 
Exhibition,  of  sample,  334. 

Express  sales,  as  distinguished  from  implied,  6. 
Express  warranty,  and  implied,  316. 
Factor,  transfer  by,  188. 
Factors'  Acts,  188,  207-210. 
In  general,  207. 

factor's  pledge  at  common  law,  207. 
prevalence   and  theory,  and  provisions  of  enact- 
ments, 207. 

protection  independent  of,  207. 
Occupations  covered,  208. 

wharfinger,  warehouseman,  etc.,  208. 
transactions  not  mercantile,  208. 
factor  "  perching  "  goods,  208. 
Intrusting  goods  or  documents,  209. 
vendee  as  agent,  etc.,  209. 
revocation  of  factor's  authority,  209. 
conflicting  sales  by  owner  and  commission  mer- 
chant, 209. 


Factors'  Acts—  Continued. 

vendor  holding  documents  of  title,  and  fraudulent 

procurement  of,  §  209. 
Apparent  ownership  or  authority,  210. 

bare  possession  insufficient,  210. 

right  to  sell,  etc.,  210. 

ostensible  authority  and  real  power,  210. 
Failure  of  consideration.     What  constitutes,  386. 

in  general,  386. 

failure  of  title  and  existence  of  defects,  386. 
Worthlessness  of  article,  387. 

insufficient  defect  of  quality,  387. 

difference  not  in  quality,  but  in  substance,  387. 

return  of  article  and  notice  of  worthlessness,  387. 

getting  thing  bargained  for,  387. 

development  of  latent  defects,  387. 

entire  want  of  value  to  either  party,  387. 

valueless  obligation,  388. 

liability  for  sale  of,  388. 

illustrative  instances,  388, 
Partial,  389. 

when  occurs,  389. 

change  in  mail  route,  389. 

goods  of  inferior  quality,  389. 

remedy  for  partial  failure,  390. 

defense  to  suit  for  price,  390. 

separate  suit  or  counter-claim,  390. 

delivery  of  part  under  entire  contract,  390. 

several  chattels  sold  together,  390. 
False  pretenses,  obtaining  goods  by,  206. 
Fetching  goods,  as  buyer's  duty,  256. 

within  reasonable  time,  256. 

receiving  or  taking  possession,  259. 
Fitness,  for  particular  purpose,  warranty  of,  346. 
Fixtures,  relation  to  statute  of  frauds,  276. 


652  INDEX. 

Food,  warranty  on  sale  of  articles  for,  §  348. 
Forced  sale,  definition  of,  6. 
Fraud.    See  FRAUDULENT  SALES. 

in  general,  354. 

on  buyer,  355-358. 

on  seller,  359,  360. 

upon  creditors,  361. 
Fraudulent  sales,  as  distinguished  from  others,  6. 

fraudulent  vendees,  transfer  by,  197. 
Fraud  in  general,  354. 

distinguished  from  mistake.  354. 

phases  of  fraud,  354. 

effect,  remedies,  etc.,  354. 

voidable  and  void  transactions,  354. 

failure  to  disclose  defects,  354. 

fraud  of  agent,  354. 
Fraud  on  buyer,  355-358. 

caveat  emptor,  355. 

failure  to  disclose  qualities  of  thing  sold,  355. 

when  fraud  not  made  out,  355. 

seller's  silence,  355. 

seller's  active  conduct,  355. 

reliance  upon  seller's  representations,  356. 

in  general,  356. 

determining  circumstances,  356. 

what  constitutes  seller's  fraud,  357. 

fraudulent  concealment,  357. 

positive  misrepresentations,  357. 

statements  concerning  price,  357% 

remedies  for,  358. 

choice  of,  358. 

mode  of  rescission,  358. 

measure  of  damages,  358. 
Fraud  on  seller,  359. 

passing  of  title  or  possession,  359. 


INDEX.  653 

Fraudulent  sales  —  Continued. 

seller's  remedies,  §  359. 

protection  of  bonafide  purchaser,  359. 

false  personation,  359. 

burden  of  proof,  creditors,  etc.,  359. 

buyer's  fraudulent  devices,  300. 

inducement  to  contract,  350. 

concerning  consideration,  360. 

design  not  to  pay,  360. 
Fraud  upon  creditors,  361. 

in  general,  361. 

retention  of  possession,  361. 

conclusiveness  of  presumption  of  fraud,  361. 

statutory  regulation,  361. 

requisites  of  delivery,  361. 
Frauds,  statute  of.    See  STATUTE  OF  FRAUDS. 
"Free  on  board,"  delivery  as  related  to  appropriation, 

138. 

Fructus  industriales,  relation  to  statute  of  frauds,  276. 
Fructus  naturales,  relation  to  statute  of  frauds,  276. 
Future  delivery,  369. 
Genuineness,  of  securities  sold,  implied  condition  of,  313, 

314. 
Gift.    Sale  or,  10. 

want  of  valuable  consideration,  4. 

general  difference,  10. 

delivery  and  acceptance  of  gift,  10. 

onerous  gift,  10. 

agreement  to  pay,  10. 

distinguished  from  contract,  10,  note  1. 
Good  faith,  of  transfer  of  bill  of  lading,  such  as  defeats 

right  of  stoppage  in  transitu,  418. 
"  Good- will,"  transfer  of,  373. 
Goods,  seller's  remedies  against,  396. 
Goods  bargained  and  sold,  suit  for,  when  proper,  394. 


654  INDEX. 

Goods  sold  and  delivered,  suit  for,  when  proper,  §  394. 
Grain  elevators.    Deposits  in,  16. 

conflicting  lines  of  cases,  16. 

intermediate  view,  16. 

latest  test  suggested,  16. 
Identification,  100. 

Identity,  of  article,  mistake  concerning,  380. 
Illegal  sales,  as  distinguished  from  legal,  6. 
In  general,  302. 

as  utterly  void,  362. 

at  common  law  and  under  statute,  etc.,  362. 

mala  in  se  and  mala  prohibita,  362. 

unlawful  scope  of  contract,  362. 

knowledge  or  participation,  362. 

executed  and  executory  contracts,  362. 

want  of  moral  turpitude,  362. 
Knowledge  of  guilty  purpose,  363. 

want  of,  363. 

guilty  party  and  purpose,  363. 

transactions  clearly  immoral,  363. 

insufficiency  of  mere  knowledge,  364. 

in  general,  364. 

of  unlawful  use  in  another  State,  364. 

counter-views  discussed,  364. 
Participation  and  aiding,  365. 

parties  in  pari  delicto,  365. 

aiding  vendee  in  unlawful  purpose,  365. 

extent  of  participation,  365. 

relief  for  parties  not  in  pari  delicto,  365. 
Executory  and  executed  contracts,  366. 

disaffirmance  before  execution,  366. 

complete  execution,  366. 
At  common  law,  367. 

in  general,  367. 

immoral  objects,  367. 


655 


Illegal  sales  —  Continued. 

dangerous  things,  §  367. 

treasonable  and  smuggling  transactions,  367. 
Public  policy,  violation  of,  368. 

in  general,  368. 

what  constitutes  public  policy,  368. 

combinations  concerning  commodities,  368. 
Wagering  contracts,  369. 

payment  of  differences,  369. 

illegal  intent,  369. 

subsequent  settlement,  369. 

future  delivery,  369. 
Offices  and  officers,  concerning  public,  370. 

sales  of  offices  or  their  emoluments,  370. 

influencing  public  officers,  370. 

affecting  elections,  370. 
Litigation  concerning,  371. 

champerty  and  maintenance,  371. 

relaxation  of  common-law  rules,  371. 
Restraint  of  trade,  372. 

in  general,  372. 

restraint  in  time,  372. 

restraint  in  space,  372. 
Good-will,  transfer  of,  373. 

not  illegal,  373. 

engaging  in  same  business,  373. 

remedies,  373. 
Statutes,  violation  of,  374. 

»       various  instances,  374. 
imposing  penalty,  etc.,  374. 
Liquors,  sale  of  intoxicating,  375. 
in  general,  375. 

>       scope  of  legislation,  375. 
conflict  of  State  laws,  375. 
Sunday  sales,  376. 


656  INDEX. 

Illegal  sales—  Continued. 

at  common  law  and  in  England,  §  376. 
in  United  States,  376. 
liberal  construction  of  enactments,  376. 
Illegality.    See  ILLEGAL  SALES. 
Immoral  transactions,  relation  to  illegalit}7,  363,  367. 
Implied  sales,  as  distinguished  from  express,  6. 
assent  may  be  implied,  29. 
express  contract  as  excluding  implied,  44. 
appropriation  of  goods  by  alleged  purchaser,  44. 
delivery  and  retention  of  part,  44. 
Impossibility,  of  performance  of  contracts  of  sale,  296. 
Incorporeal   personalty,  relation   to   statute   of   frauds, 

277. 

transfer  of,  in  relation  to  warranty  of  title,  326. 
Inebriated  persons.    See  INTOXICATED  PERSONS. 
Infants,  as  parties  to  sales,  48-54. 

voidable  character  of  transactions,  48. 
Sales  and  purchases  by,  48. 
ratification  after  majority,  48. 
time  to  disaffirm,  48. 
enforcing  delivery,  48. 
trading  purchases  of,  no  liability  as,  for  necessaries, 

51  o 
such  purchases  voidable  under  modern  tendency, 

though  strictly  void,  51. 
Necessaries,  49,  50. 
common-law  liability,  49. 
support  supplied  by  parents,  etc.,  49. 
scope  of  term,  49. 
province  of  court  and  jury,  49. 
express  contracts  for  necessaries,  when  and  how  far 

held  binding  or  otherwise,  50. 

Misrepresentation  of  age  by,  title  of  innocent  pur- 
chaser, 52. 


. 


INDEX.  657 

Infants —  Continued. 

no  estoppel  of  infant,  §  52. 

infant's  recovery  of  consideration,  52. 
Ratification  after  majority,  in  writing,  53. 

modes  of,  53. 

direct  promise,  53. 

acquiescence  in  sale,  etc.,  53. 

retaining  property  purchased,  53« 
'    Disaffirming  transaction,  54. 

rescission  of  sale  before  majority,  54. 

restoration  of  property  or  consideration,  54. 

tender,  54. 

use  or  consumption,  54. 

allowing  for  benefit,  54. 

innocent  purchasers.    See  BONA  FIDE  PURCHASERS. 
Insane     persons,    and    those    mentally    incompetent, 
46. 

contracts  voidable,  46. 

when  sales,  etc.,  sustained,  46. 

necessaries,  46. 

Insolvency,   of  buyer  as  reviving    seller's   lien  where 
credit  given,  409. 

of  buyer,  as  ground  for  exercise  of  seller's  right  of 

stoppage  in  transitu,  412. 
Inspection,  and  acceptance,  252. 

buyer's  right  of,  212. 

right  of,  260. 

opportunity  for,  as  affecting  implied  warranty  of 
quality,  331. 

finality  of,  in  sales  by  sample,  338. 
Instalment  sales,  306. 

as  illustration  of  severable  contracts  of  sale,  6. 
Instalments,  of  price,  payments  of,  121. 

delivery  by,  238. 

remedies  for  delay  in  delivery  of,  402. 


658  INDEX. 

Intention,  as  criterion  to  determine  whether  sale  execu- 
tory or  not,  §  111. 

to  reserve  control,  evidence  of,  143. 

relation  to  transfer  of  title,  155-157. 
Intercepting  goods,  by  buyer,  as  defeating  stoppage  in 

transitu,  415. 
Interest,  in  chattel,  transfer  of,  in  relation  to  warranty  of 

title,  325. 
Intoxicated  persons,  as  parties  to  sales,  etc.,  37. 

extent  of  intoxication,  47. 

contracts  voidable,  etc.,  47. 

liability  for  necessaries,  47. 
Intoxicating  liquors,  sales  of,  375. 

Intrusting  goods,  or  documents  under  Factors'  Acts,  209. 
Involuntary  sale,  definition  of,  6. 
Judicial  sales,  definition  of,  6. 

title  of  purchaser  at,  173. 

Jus  disponendi,  reserving,  see  RESERVATION  OP  CONTROL. 
Kinds,  of  sales,  see  CLASSIFICATION. 
Knowledge,  of  unlawful  purpose  of  transaction,  363,  364. 
Latent  defects,  332. 

relation  to  warranty,  349,  450. 

in  general,  349. 

lack  of  fault  or  knowledge  by  seller,  350. 
Lease.    Sale  or,  22. 

conveying  whole  interest,  22. 

sale  under  guise  of  renting,  22. 

formalities  of  lease  lacking,  22. 

unrecorded  instrument  construed  as  sale,  22. 

lease  giving  privilege  of  purchase,  22. 

distinction  in  Pennsylvania,  22. 
Letter.    See  CONTRACT  BY  LETTER. 
Levy,  of  attachment  or  execution  by  creditor  as  not  de- 
feating right  of  stoppage  in  transitu,  418. 
Lien,  seller's,  see  SELLER'S  LIEN. 


liquor.    Sale 


INDEX. 


quor.    Sale  by  club,  §  13. 
for  consumption  off  the  premises,  etc.,  13. 
payment  in  checks,  etc.,  13. 
counter-views,  13. 
sales  of  intoxicating,  375. 
Loan,  distinguished  from  sale,  28. 
Lobbying  contracts,  370. 
Lost  chattels,  title  of  purchaser,  181. 
Maintenance,  and  champerty,  371. 
Mala  in  se,  and  mala  prohibita,  in  relation  to  illegality, 

362. 
Mala  prohibita,  and  mala  in  se,  in  relation  to  illegality, 

362. 
Manufacture,  sale  or  contract  to,  under  statute  of  frauds, 

28. 

notice  to  stop,  393. 

Manufactured  chattels,  sales  of,  114-124. 
In  general,  114. 

presumption  against  immediate  transfer  of  title,  114. 
disposition  of  unsatisfactory  chattel,  114. 
contract  generally  executory  until  chattel  finished 

and  appropriated,  114. 
Need  of  completion,  etc.,  115. 
act  remaining  to  be  performed,  115. 
chattel  must  be  finished,  etc.,  115. 
counter-intent,  115. 
Requisites  to  transfer  of  title,  116. 
completion,  delivery,  appropriation,  etc.,  116. 
procuring  full  payment  for  unfinished  set  of  tools, 

116. 

rule  concerning  vessels,  etc.,  in  progress  of  comple- 
tion, 116. 
Need  of  delivery,  117. 

Kin  England,  117. 
in  this  country,  117. 


660  INDEX. 

Manufactured  chattels—  Continued. 

rule  otherwise  when  different  special  stipulations, 
§117. 

everything  done  and  notice  given,  117. 

intention  governs,  117. 
Need  of  assent,  118. 

statement  and  illustration,  118. 

maintenance  of  action  for  goods  bargained  and  sold, 
118. 

sufficiency  of  appropriation,  118. 

tender,  etc.,  of  manufactured  article,  118. 

payment  by  instalments  and  superintendence  of 

work,  118. 
Unfinished  chattels,  119. 

showing  express  intention  to  pass  title,  119. 

transfer  of  thing  in  its  existing  state,  119. 

delivery,  bill  of  sale,  etc.,  119. 
Ship-building,  contracts,  170. 

title  to  uncompleted  vessel,  120. 

superintendent  for  intended  buyer,  120. 

express  agreement  and  burden  of  proof,  120. 

question  of  intent  and  interpretation,  120. 

stipulations  as  to  instalments,  superintendence,  etc., 

not  decisive,  120. 
Instalments  of  price,  payments  of,  121. 

English  rule  of  construction,  121. 

American  views,  121. 
Unattached  materials,  122. 

presumption  against  transfer  of  title,  122, 

effect  of  acceptance,  122. 

applications  of  principles,  122. 
Chattels  not  finished,  title  to,  123. 

particular  instances,  123. 
Unfinished  vessels,  title  to,  124. 

special  applications  of  principles,  124. 


IttDEX.  661 

Manufacturer.    Delivery  to,  §  18. 

obligation  to  restore  identical  or  equivalent  things, 
18. 

transaction     between      merchant      and      tanner, 
18. 

cloth  left  with  tailor,  18. 

contract  with  powder  company,  18. 

liability  of,  on  sales  by  sample,  339. 

liability  of,  on  sales  by  description,  344. 
Market  price,  63. 
Markets  overt,  178-180. 
Married  women.    See  SOLE  TRADERS, 

as  parties  to  sales,  etc.,  55-59. 
At  common  law,  55. 

general  rule,  55. 

exceptions,  55. 
In  equity,  56. 

British  rule,  56. 

intention  inferable,  56. 

American  view,  56. 
Under  statutes,  57. 

English  married  women's  acts,  57. 

American  enactments,  57. 
Sole  traders,  58,  59. 
Materials,  unattached,  122. 
Measuring,  weighing,  etc.,  91. 
Memorandum,  under  statute  of  frauds,  286-293. 

in  general,  286. 

form,  287. 

contents,  288. 

parol  evidence  concerning,  289. 

modification  of  original  bargain,  290. 

signature,  291. 

compliance  by  agents,  292. 

brokers,  293. 

NEWMARK  SAXES.  — 56. 


662  INDEX. 

Merchantable  character,  warranty  of,  sometimes  alone 

covered  on  sale  by  sample,  \  336. 
warranty  of,  347. 
Middleman,  capacity  of,  in  relation  to  stoppage  in  transitu, 

414. 
Millers.    Arrangements  withj  whether  sale  or  bailment, 

15. 

return  of  specified  proportions  of  flour,  etc.,  15. 
corn  to  be  used  as  part  of  current  consumable  stock, 

15. 

no  right  reserved  to  return  or  recall,  etc.,  15. 
when  mere  bailment,  15. 
Minors.    See  INFANTS. 
Mistake,  consent  lacking,  when  misunderstanding  on 

material  matter,  30. 
in  drawing  sample,  336. 
Terms  of  contract,  concerning,  377. 
no  meeting  of  minds,  377. 
different  ships  meant,  377. 
part  delivery,  377. 
mistake  of  one  party,  377. 
Essence  of  contract,  touching,  378. 
false  representation,  378. 
substantial  failure  of  consideration,  378. 
matter  merely  collateral,  378. 
Subject-matter,  as  to,  379. 
as  avoiding  contract,  379. 
identity  or  existence  of  thing  sold,  379. 
situation  of  property,  379. 
buyer's  ability  to  pay,  379. 
quality,  379. 

Identity  of  article,  concerning,  380. 
reference  to  different  articles,  380. 
misplacement  of  damaged  flour,  380. 
contents  of  receptacle,  380. 


INDEX.  663 


Mistake  —  Continued. 
Price,  concerning,  $  381. 
effect  of,  381. 

vendor's  subsequent  sale,  381. 
snapping  up  offer,  381. 
Quantity,  concerning,  382. 

recovery  of  excess  of  price  paid,  382. 
setting  off  amount  of  shortage,  382. 
duties  not  recoverable,  382. 
Quality,  concerning,  383. 
not  ground  of  avoidance  by  buyer,  383. 
no  repudiation  by  seller  of  ascertained  articles,  383. 
Person,  concerning,  384. 

»        vital  when  personality  important,  384. 
exclusion  from  set-off,  etc.,  384. 
assent  to  purchase  from  successor,  384. 
giving  credit  under  mistaken  assumption,  384. 
Remedies  of  parties,  385. 
recovering  back  price,  385. 
where  mistake  as  to  subject-matter,  385. 
reforming  bill  of  sale,  385. 
Modification,  of  original  bargain  under  statute  of  frauds, 

290. 
Mortgage.    Sale  or,  24. 

intention  as  criterion,  24. 
conditional  sale  rather  than  mortgage,  24. 
discharge  of  debt  as  test,  24. 
right  of  repurchase  or  redemption,  24. 
Mutual  assent,    See  CONSENT. 
Necessaries,  for  insane  persons,  46. 
for  intoxicated  persons,  47. 
for  infant,  49,  50. 
Negotiable  instruments,  relation  to  statute  of  frauds,  277. 

taken  for  price,  seller's  lien  where,  409. 
Negotiable  paper,  payment  in,  270. 


664  INDEX. 

Negotiation,    preliminary    to    sale,   see    PRELIMINARY 

NEGOTIATION. 

Nominal  damages,  for  failure  to  deliver,  §  398. 
Notice,  of  non-acceptance,  etc.,  seller's  waiver  of,  264. 

as  an  element  in  sales,  298. 

of  defects,  323. 

not  to  manufacture,  393. 

to  stop  goods  in  transit,  417. 
Offer,  withdrawal  of,  and  giving  of  time,  29. 

variation  from  offer  as  counter-proposition,  29. 
To  sell,  32. 

notice  to  the  trade,  32. 

quotation  or  statement  of  price,  32. 

of  payment,  as  prerequisite  to  suit  for  failure  to  de- 
liver, 400. 
Offices,  illegality  concerning  public,  370. 

sales  of  offices  or  their  emoluments,  370. 
Option,  buyer's,  307. 
Oral  sales.    See  STATUTE  OF  FRAUDS. 

restrictions  on  validity  or  enforcement,  6. 
Oral  warranty,  or  written,  315. 
Ostensible  ownership,  or  authority,  174,  175. 
Ownership,  ostensible,  174,  175. 

or  authority  apparent  by  factors,  210. 
Pari  delicto,  parties  in,  365. 
Parol  evidence,  concerning  memorandum  under  statute 

of  frauds,  289. 

Part  payment,  earnest  or,  under  statute  of  frauds,  279. 
Partial  delivery,  237. 

Participation,  in  unlawful  transaction,  365. 
Parties.    See  INSANE   PERSONS;    INFANTS;    MARRIED 

WOMEN. 
In  general,  45. 

as  element  of  sale,  45. 

seller  and  buyer,  45. 


INDEX.  665 

Parties  —  Continued. 
who  may  sell,  §  45. 
who  may  buy,  45. 

Insane  and  mentally  incompetent  persons,  as,  48. 
Intoxicated  persons  as,  47 ;  see  that  separate  title. 
Infants  as,  48-54. 
Married  women  as,  55-59. 
Patent  defects,  320. 

Patent  rights,  relation  to  statute  of  frauds,  277. 
Payment,  nor  delivery  necessary  to  transfer  of  title,  158. 
stipulations  concerning,  163. 
delivery  and  payment  as  concurrent,  225. 
delivery  under  expectation  of,  227. 
part,  under  statute  of  frauds,  279. 
offer  but  not  tender  of,  as  prerequisite  to  suit  for 

failure  to  deliver,  400. 
Sale  or,  27. 

compensation  for  service,  27. 
payment  or. purchase  of  note,  27. 
"  giving  in  payment "  in  Louisiana,  27. 
In  general,  269. 
signification,  269. 
buyer's  duty,  269. 
modes  of,  269. 
Cash,  in,  in  general,  270. 


»          where  contract  silent,  270. 
demand  of  price,  270. 


Negotiable  paper,  in,  2,  65,  271. 

prima  facie  conditional,  65. 

prima  facie  absolute,  65. 

by  check,  271. 

by  buyer's  note,  etc.,  271. 

third  party's  note,  etc.,  271. 
Chattels,  in,  64. 

covenant  or  debt  as  remedy,  64. 


666  INDEX. 

Payment —  Continued. 

debt  as  remedy,  §  64. 

optional  or  otherwise,  64. 
Credit  sales,  in  general,  272. 

effect  of,  272. 

time  of  payment  under,  272. 
Mode  of  making,  in  general,  273. 

not  in  cash,  273. 

tender,  etc.,  273. 

Payments,  appropriation  of,  273,  note  7. 
Person,  mistake  concerning,  384. 
Place,  of  performance  of  conditions  in  sales,  stipulations 

concerning,  297. 
Pledge,    Sale  or,  sale  and  not  pledge  or  mortgage,  23. 

pledge  and  not  sale,  23. 

parol  evidence  to  show  pledge,  23. 
Pledges,  transfers  of  unforfeited,  185. 

sales  of  forfeited,  185. 
Possession,  right  of,  159. 

seller's,  as  related  to  further  transfers,  196. 

receiving  or  taking.  259. 

resumption  of,  under  conditional  sales,  305. 

seller's,  as  test  of  warranty  of  title,  328. 

breach  by  dispossession,  etc.,  329. 
Preliminary  negotiation,    Sale  or,  distinction  made,  8. 

ground  of,  8. 

Price.    See  PAYMENT  ;  SPECIFIED  CHATTELS,  SALES  OF. 
In  general,  60. 

essential  feature  of  sale,  60. 

money  or  other  equivalent,  60. 

mode  of  payment,  60. 

real  and  fixed,  or  ascertain  able,  60. 

sufficiency  of  consideration,  60. 

evidence  of  value,  60. 

inadequacy  of  price,  60. 


INDEX.  667 

Price — Continued.  * 
Determination  where  not  fixed,  $  61. 

need  of  specification,  61. 

price  ascertain  able  from  contract,  61. 

something  remaining  to  be  done,  61. 

failure  of  parties  to  agree  upon,  61. 

additional  act  requisite,  61. 
Valuation  by  third  person,  62. 

decision  effective,  62. 

no  sale  until  valuation  made,  62. 

estimate  binding,  62. 
Reasonable  price,  63. 

where  no  price  fixed,  63. 

market  price,  63. 

by  agreement,  63. 

not  where  special  contract,  63. 
Payment  of,  in  chattels,  64. 

in  negotiable  paper,  65. 

Various  points,  ascertainment  of  acts  for,  as  postpon- 
ing transfer  of  title,  87-89. 

ascertaining,  87. 

left  unadjusted,  88. 

or  value,  under  statute  of  frauds,  278. 

mistake  concerning,  381. 

suit  for,  394. 

buyer's  liability  for,  397. 
Privilege  of  purchase,  20. 

keeping  chattel  or  paying  for  its  use,  20 

option  to  purchase  or  return,  20. 

bailment  with,  transfers  under,  184. 
Privilege  of  return,  21. 

option  to  return  or  pay,  etc.,  21. 

dissatisfaction  with  contemporaneous  trade,  21. 

waiver  of  right  to  insist  upon  return,  21. 
Provisions,  warranty  on  sale  ojf,  348. 


668  INDEX. 

Public  policy,  violation  of,  §  368. 

Purchase,  privilege  of,  20. 

Purchasers,  bonafide,  see  BONA  FIDE  PURCHASERS. 

Qualified  or  conditional  warranty,  322. 

Quasi    vendors,   etc,,  exercising    right    of    stoppage   in 

transitUj  416. 

Ratification,  by  infant  after  majority,  53. 
Eeasonable  price,  63.    See  under  PRICE. 
Receipt,  acceptance  distinguished  from,  258. 

under  statute  of  frauds,  281,  284. 

actual,  under  statute  of  frauds,  284. 
Rejection,  right  of,  262. 

buyer's  course  on,  263. 

notice  of  non-acceptance,  etc.,  263,  264. 

of  article  to  be  satisfactory,  268. 
Remedies,  for  breach  of  warranty,  351-353. 

for  mistake,  385. 

seller's,  391-396. 

election  of,  by  seller,  394. 

buyer's,  397-403. 

Replacing  goods,  cost  of,  as  standard  of  damages  for  fail- 
ure to  deliver,  398. 
Repledge,  for  greater  amount,  185. 
Resale.    Delivery  for ,17. 

return  of  money  or  property,  17. 

action  of  accredited  agent,  17. 

receipt,  etc.,  indicating  sale,  17. 

recipient  becoming  factor,  etc.,  17. 

as  one  of  several  remedies,  391. 

right  of,  in  general,  396. 
Right  of,  404. 

in  general,  404. 

election  of  seller,  404. 

English  doctrine,  404. 
Mode  of,  405. 


INDEX.  669 

Resale —  Continued. 

in  general,  \  405. 

restrictions  on  seller,  405. 

place  of,  405. 

time  of,  405. 

notice,  405. 
Recovery  after,  406. 

ordinary  view,  506. 

special  view,  506. 

goods  not  separately  resold,  etc.,  506. 

mere,  as  insufficient  to  defeat  right  of  stoppage  in 

transitu,  418. 

Reservation  of  control,  137. 
In  general,  142. 

by  seller  taking  bill  of  lading  to  his  own  order,  142. 

dealing  with  bill  of  lading  to  secure  price,  142. 
Intention,  evidence  of,  143. 

provisional  or  conditional  appropriation  allowed, 
143. 

difficulty  in  ascertaining  intention,  143. 

generally  question  of  fact  for  jury,  143. 

effect  of  making  bill  of  lading  deliverable  to  seller's 

order,  143. 
Passing  of  title  to  buyer,  144. 

ship  owned  or  hired  by  buyer,  144. 

bill  of  lading  indorsed  as  security  for  draft,  144. 

procurement  of  blank  bill  of  lading,  144. 

unindorsed  bill  of  lading  in  seller's  name,  144. 

bill  of  lading  specially  indorsed  to  buyer,  etc.,  144. 

seller's  right  of  possession  and  lien,  144. 
Seller's  transferee,  rights  of,  145. 

delivery  of  bill  of  lading  to  purchaser  or  pledgee, 
145. 

transfer  before  consignee's  possession  of  goods,  145. 

buyer's  objections  to  the  sale,  etc.,  145. 


670  INDEX. 

Reservation  of  control  —  Continued. 
Delivery  to  carrier,  effect  of,  §  146. 

as  passing  title,  146. 

immaterial  circumstances,  146. 

where  bill  of  lading  taken,  146. 

on  board  buyer's  vessel,  148. 

restraining  effect  of,  148. 

goods  not  appropriated  before  shipment,  148. 
Bill  of  lading,  to  seller's  order,  147. 

as  indication  of  intention  to  reserve  control,  147. 

proof  in  rebuttal,  147. 

illustrative  cases,  147. 

statement  of  governing  doctrine,  147. 
Bill  of  exchange,  disposition  of,  149. 

refusing  acceptance,  149. 

mailing  to  purchaser  of  bill  of  lading  to  buyer's 
order,  149. 

depositing  bill  of  lading  with  discounting  bankers, 
149. 

general  and  special  property,  149. . 
Bill  of  lading,  transmission  to  buyer  of  indorsed, 
150. 

question  of  seller's  intention,  150. 

goods  deliverable  to  consignor's  order,  150. 

remittance  of  draft  requested,  150. 

undelivered  bill  of  lading  in  buyer's  name,  150. 

transmission  to  secure  advances,  151. 

as  evidence  of  appropriation,  etc.,  151. 

general  indebtedness  of  consignor,  151. 

transmission  to  agent,  152. 

presumption  of  condition  of  acceptance  of  bill  of 
exchange,  152. 

effect  of  different  course,  152. 

when  title  passes,  152. 
Restraint  of  trade,  sales  and  contracts  in,  372. 


INDEX.  671 

Return  of  goods,  right  of,  §  309. 

sale  or,  310. 

privilege  of  return,  21. 
Right  of  possession,  159. 
Risk,  assumption  by  acceptance,  97. 

change  of,  160. 

title  and,  161. 

assumption  of,  161, 162. 

stipulations  concerning,  163. 
Sale,  definitions,  1,  2. 

scope  of  term,  2. 

elements,  3. 

consideration,  4. 

transfer  of  title,  5. 

classification  of  sales,  6. 

distinguished  from  similar  transactions,  7-28.    See 
SIMILAR  TRANSACTIONS. 

delivery  to  manufacturer,  18. 

tinder  conditional,  19. 

privilege  of  purchase,  20. 

privilege  of  return,  21. 

or  lease,  22. 

or  pledge,  23. 

or  mortgage,  24. 

or  consignment,  25,  26. 

or  payment,  27. 

distinguished   from  agency,  loan,  trust,  and    se- 
curity, 28. 

distinguished  from  accord  and  satisfaction,  28. 

distinguished  from  contract  to  manufacture,  28. 

colorable,  30. 

implied,  44. 

Consent,  29-44.    See  CONSENT. 
Parties,  45-59  ;  see  separate  title. 
Price,  60-65 ;  see  that  title. 


672  INDEX. 

Sale —  Continued. 
Thing  sold,  %  66-69.    See  THING  SOLD. 

"sale  or  return,"  310. 

of  goods  "  to  arrive,"  311. 

by  sample  or  description,  conditions  concerning, 

312. 
Sales,  executory,  70-152. 

conditional,  294-314. 

fraudulent,  354-361. 

illegal,  362-376. 

manufactured  chattels,  of-,  114-124. 

specified  chattels,  of,  75-97. 

unspecified  chattels,  of,  98-113. 

contract  or  conveyance,  154. 

"  sale  or  return,"  310. 

"on  trial,"  308. 

sample,  by,  334-340. 

description,  by,  341-345. 
Sales  "  on  trial,"  308. 
Sales    by  sample,  334-340.    See   under  WARRANTY  OF 

QUALITY. 

Sales  by  description,  341-345. 
Sample,  or  description,  sale  by,  condition  implied  in,  312. 

sale  by,  seller's  appropriation  of  goods  not  corre- 
sponding with  sample,  133. 

sales  by,  334-340. 

exhibition   of,    334.       See    under   WARRANTY   OF 

QUALITY. 

Satisfactory,  article  to  be,  307. 
Securities,  sold,  genuineness  of,  implied  condition  of, 

313,  314. 

Security,  distinguished  from  sale,  28. 
Selection  and  separation,  of  goods,  103. 
Sell,  who  may,  45. 
Seller,  and  buyer,  45. 


INDEX.  673 

s  lien,  in  general,  $$  391,  396. 
In  general,  407. 

where  credit  not  given,  etc.,  407. 

extinction  by  unconditional  surrender  of  posses- 
sion, 407. 

constructive  delivery,  407. 

reservation  of  lien,  407. 

notice,  407. 
Withholding  or  countermanding  delivery,  408. 

general  doctrine  and  application,  408. 

giving  delivery  order,  etc.,  408. 
Giving  credit,  409. 

as  waiver  of  lien,  409. 

insolvency  of  buyer  where  possession  retained  or 
regained,  409. 

taking  notes,  etc.,  409. 
Sub-sale,  arid  estoppel,  410. 

resale  by  buyer,  410. 

estoppel  of  seller,  410. 
Seller's  remedies.    In  general,  391. 

against  buyer  and  against  goods,  391. 

action  for  goods  sold,  391. > 

damages  for  failure  to  accept,  391. 

resale,  etc.,  391. 

seller's  lien  and  stoppage  in  transitu,  391. 
Damages  for  non-acceptance,  392. 

when  only  remedy,  392. 

general  rule,  392. 

exceptional  cases,  392. 
Notice  not  to  manufacture,  393. 

general  doctrine,  393. 

applications,  393. 
Forms  of  action,  394. 

special  declaration,  394. 

common  counts  for  goods  sold,  394. 
NEWMARK  SALKS.  — 67. 


674  INDEX. 

Seller's  remedies —  Continued. 

election  of  remedies,  §  394. 

suit  for  price,  394. 
Credit,  waiting  for  expiration  of,  395. 

in  general,  395. 

refusal  to  give  security,  395. 

buyer's  fraud,  395. 

retention  of  goods  sent,  395. 
Against  the  goods,  396. 

lien  and  stoppage,  396. 

right  of  resale,  396. 
Separate  trading  of  married  women,  58,  59.    See  SOLE 

TRADERS. 
Separation,  selection  and,  103. 

weighing  or,  108. 

from  uniform  mass,  112. 
Severable  contracts  of  sale,  as  distinguished  from  entire 

or  indivisible  contracts,  6. 

Shares  of  stock,  relation  to  statute  of  frauds,  277. 
Ship-building  contracts,  120. 

title  to  unfinished  vessels,  124. 
Ship-owners,  estoppel  of,  215. 
Shipping  receipts,  214. 

Signature,  to  memorandum  under  statute  of  frauds,  291. 
Similar  transactions,  sale  or  assignment,  7. 

sale  or  preliminary  negotiation,  8. 

sale  or  executory  agreement,  9. 

sale  or  gift,  10. 

sale  or  exchange,  11,  12. 

sale  of  liquor  by  club,  13. 

sale  or  bailment,  14-25. 

accord  and  satisfaction,  28 

agency,  28. 

assignment,  7. 

club,  sale  of  liquor  by,  13. 


INDEX.  675 

Similar  transactions —  Continued. 

bailment,  \  14. 

conditional  sales,  delivery  under,  19. 

consignment,  25,  26. 

elevators,  grain,  deposits  in,  16. 

distinctions,  further,  28, 

exchange,  11,  12. 

executory  agreement,  9. 

gift,  10. 

lease,  22. 

liquor,  sale  by  club,  13. 

loan,  28. 

manufacture,  contract  of,  for,  28. 

manufacturer,  delivery  to,  18. 

millers,  arrangements  with,  15. 

mortgage,  24. 

payment,  27. 

pledge,  23. 

purchase,  privilege  of,  20. 

remedies,  12,  26. 

resale,  delivery  for,  17. 

return,  privilege  of,  21. 

security,  28. 

trust,  28. 

Smuggling  transactions,  illegality  of,  367. 
Sole  traders.    By  custom,  58. 

custom  of  London  and  its  adoption,  58. 

scope  of  custom,  58. 

restrictions  where  custom  prevails,  58. 
Separate  trading  under  special  enactments,  59. 

prevalence  of,  59. 

effect  of  enactments,  59. 

when  acts  held  inapplicable,  59. 

K    soundness  or  other  qualities  of  animals,  warranty 
concerning,  321. 


676  INDEX. 

Special  damages,  for  failure  to  deliver,  §  398. 

Special  declaration,  in  seller's  suit,  394. 

Specific  performance,  of  contracts  of  sale  and  deli  very,  401. 

Specification,  need  of,  98. 

Specified  chattels,  sales  of,  as  distinguished  from  sales  of 

unspecified  chattels,  6,  note  19. 
Goods  subject  to  disposition  by  sale,  75. 
in  largest  sense  of  term  "  sale,"  75. 
under  common-law  sale,  75. 
Goods  mingled  with  others,  76. 
need  of  separation,  identification,  etc.,  76. 
passing  of  title  to  goods  clearly  identified,  76. 
commodity  of  uniform  character,  76. 
agreement  to  buy  all  the  spring  lambs  of  another,  76. 
Bargain  for  specified  quantity,  of  grain,  77. 
separated  from  other  grain,  77. 
specified  quantity  of  unseparated  grain,  77. 
no  specification  of  quantity  or  location,  77. 
Identification  of  goods,  78. 
sufficiency  of,  78. 
designation  by  marking,  78. 
Intention  to  retain  title,  79. 
intendment  in  favor  of  transfer  of  title;  79. 
unperformed  acts  indicating  contrary  intention,  79. 
Intention  to  retain  title,  indications  of  such  intention, 

80. 

by  various  circumstances,  80. 
acts  by  seller  on  his  own  behalf,  80. 
seller's  acts  for  buyer's  benefit,  etc.,  80. 
Act  remaining  to  be  done,  81. 
by  seller  before  delivery,  81. 
purposes  of  seller's  acts,  81. 
quantity,  quality,  etc.,  to  be  determined  by  vendee, 

81. 
seller's  act  under  buyer's  direction,  81. 


677 


Specified  chattels,  sales  of — Continued. 
Unperformed  acts  not  affecting  title,  \  82. 

where  goods  sufficiently  designated,  82. 

quantity  may  remain  to  be  ascertained,  82. 

various  things  lacking,  82. 
By  whom  act  to  be  done,  83. 

sometimes  deemed  immaterial,  83. 

by  seller  under  general  view,  83. 

inconsistent  statements,  83. 

more  comprehensive  declaration,  83. 
{Seller's  acts,  84. 

weighing  undelivered  portion,  84. 

filling  up  casks,  84. 

counting  skins,  84. 

timber  transactions,  84. 
Buyers  acts,  85. 

to  goods  in  his  possession,  etc.,  85. 

quantity  to  be  settled,  85. 

reason  of  general  rule,  and  when  inapplicable,  85. 

exact  price  to  be  ascertained,  85. 

illustrative  instances,  85. 
Putting  into  deliverable  state,  86. 

need  of,  as  suspending  transfer  of  title,  86. 

Blackburn's  first  rule,  86. 

by  other  acts  than  weighing  and  measuring,  86. 

intention  of  parties  controls,  86. 
Ascertaining  price,  87. 

acts  for,  as  presumptive  conditions  precedent,  87. 

Blackburn's  second  rule,  87. 

broad  statement  of  doctrine,  87. 

rule  criticised  and  limited,  87. 

where  object  only  to  satisfy  purchaser,  87. 

where  price  mere  matter  of  computation,  87. 
Price  left  unadjusted,  88. 

limitation  of  principle,  88. 


678  INDEX. 

Specified  chattels,  sales  of —  Continued. 

intention  as  to  identified  goods,  §  88. 
Distinction  where  sale  complete  and  executed,  89. 

rule  as  to  price  in  executory  contracts,  89. 

where  contract  executed,  89. 
Rule  of  presumption  merely,  90. 

intention,  how  gathered,  90. 

designated  goods,  90. 

acts  to  determine  price,  90. 
Weighing,  measuring,  etc.,  91. 

course  of  decisions  in  England,  91 

American  views,  91. 

unpaid  price  as  factor,  91. 

presumptive  postponement  of  change  of  ownership, 

91. 
Intention  to  pass  title,  92. 

effect  given  to,  92. 

illustrative  cases,  92. 
Special  circumstances,  93. 

govern  while  intention  criterion,  93. 

American  tendency  against   strong  presumption, 

93. 
Acts  to  be  done  after  delivery,  94. 

delivery  as  indicative  of  intent  to  pass  title,  94. 

acts  for  adjustment  of  price,  94. 

broader  statement  of  rule,  94. 

constructive  and  actual  delivery,  94. 
Duty  and  agreement  to  deliver,  95. 

as  affecting  state  of  goods,  95. 

special  undertaking  to  deliver,  95. 

illustrations,  95. 
Effect  of  delivery,  96. 

presumption  of  finality  of  transfer,  96. 

by  whom  act  to  be  done  after  delivery,  96. 

delivery  not  conclusive,  etc.,  96. 


INDEX.  679 

Specified  chattels,  sales  of—  Continued. 
Acceptance,  assumption  of  risk  by,  \  97. 

in  general,  97. 

express  undertaking,  97. 
Statute  of  frauds,  as  restricting  oral  sales,  6. 

sale  or  contract  to  manufacture  under,  28. 
In  general,  274. 

changes  common  law,  274. 

purpose,  274. 

provisions  respecting  personal  property,  274. 

prevalence,  274. 

design  and  operation,  274. 

subsequent  compliance,  274. 

when  provision  inapplicable,  274. 
Contracts  covered,  275. 

executory  sales,  275. 

auction  sales,  275. 

mixed  contracts,  275. 

various  contracts,  275. 
Things  attached  to  the  soil,  27(x 

products  of  the  earth,  276. 

growing  trees,  276. 

fixtures,  276. 
Incorporeal  personalty,  277. 

shares  of  stock,  277. 

negotiable  instruments,  277. 

things  in  action,  277. 

patent  rights,  277. 
Amount  prescribed,  278. 

"  price  "  or  "  value,"  278. 

statutory  sum,  278. 

purchase  of  several  articles,  278. 
Earnest  or  part  payment,  279. 

as  equivalent  acts,  etc.,  279. 

thing  of  value  computable  in  money,  279. 


680  INDEX. 

Statute  or  frauds  —  Continued. 

subsequent  to  oral  bargain,  $  299. 

acceptance,  etc.,  279. 

deposit  with  third  party,  279. 

offset  stipulation,  279. 
Delivery,  280. 

statutory  provisions,  280. 

requisites  of  delivery,  280. 

insufficiency  of  delivery  or  seller's  acts  aloxie,  280. 
Acceptance  and  receipt,  281. 

concurrence,  281. 

order  of  time,  281. 

of  part  of  goods,  281. 

relation  to  lien  and  title,  281. 

buyer's  possession  and  control,  281. 

inspection  and  examination,  282. 

receipt  by  carrier  or  custodian,  282. 
Acceptance,  282,  283. 

and  receipt,  281. 

in  general,  282. 

precluding  objection,  etc.,  282. 

what  constitutes,  283. 

direct  and  constructive,  283. 

exercise  of  ownership,  283. 

keeping  bills  of  lading,  283. 

marking  goods,  283. 

equivocal  acts,  etc.,  283. 

intention  to  be  manifested,  283. 
Receipt,  actual,  in  general,  284. 

requisites,  284. 

goods  in  buyer's  custody,  284. 

goods  in  seller's  custody,  284. 

goods  in  third  person's  custody,  284. 
Carriers  and  other  middlemen,  intervention  of,  285. 

receipt  by  such  agents,  285. 


INDEX.  681 

ite  of  frauds  —  Continued. 

seller  keeping  control,  $  285. 
Memorandum,  in  general,  286. 

provision  of  statute,  286. 

distinguished  from  oral  and  written  contract,  287. 

method  of  proof,  286. 

form  of,  287. 

formal  writing  not  requisite,  287. 

sufficient  modes  of  expression,  286. 

letter,  287. 

telegram,  287. 

acknowledgment,  287. 

of  invoice  or  bill  of  parcels,  287. 

separate  writings,  287. 

written  proposal,  287. 

repudiation  of  bargain,  287. 

not  addressed  to  plaintiff,  287. 

contents  of,  in  general,  288. 

designation  of  parties,  288. 

price,  288. 

essential  terms  of  bargain,  288. 

stipulations,  288. 

time  and  place  of  delivery,  288. 

parol  evidence  concerning,  289. 

general  rule  against,  289. 

to  show  that  writing  states  bargain,  289. 

trade  usage,  extraneous  evidence  of,  289. 

ambiguity,  removal  of,  289. 

modification  of  original  bargain,  290. 

subsequent  agreement,  showing  or  excluding.  290. 

rescission  of  prior  contract,  290. 
Signature,  to  memorandum,  291. 

place  of  signing  or  subscribing,  291. 

mode  of  signing,  291. 

connected  papers,  291. 


632  INDEX. 

Statute  of  frauds —  Continued. 

Compliance  by  agents,  in  general,  \  292. 

authority  of  agent,  292. 

agent's  capacity,  etc.,  292. 

auctioneer's  memorandum,  292. 

brokers,  293. 

for  both  parties,  293. 

for  one  party,  293. 

memorandum  book,  293. 

bought  and  sold  notes,  etc.,  293. 
Statutes,  violation  of,  as  constituting  illegality,  374. 
Stock,  shares  of,  relation  to  statute  of  frauds,  277. 
Stolen  goods,  purchase  of,  176. 
Stoppage  in  transitu.     In  general,  391,  396,  411. 

nature  and  requisites,  412. 

non-payment  of  any  part  of  price,  411. 

giving  credit,  taking  notes,  etc.,  411. 
Buyer's  insolvency,  412. 

as  determining  right  of  stoppage,  412. 

what  constitutes,  412. 

time  of  insolvenc}',  412. 

information  of  insolvency,  412. 
Duration  of  transit,  413. 

in  general,  413. 

beginning  and  end  of  transit,  413. 

continuance  of  transit,  413. 

cessation  of  right  of  stoppage,  413. 

recommencement  of  transit,  413. 
Capacity  of  middleman,  414. 

in  general,  414. 

intermediate  agent,  414. 

detention  for  carrier's  charges,  414. 
Delivery  terminating  transit,  415. 

actual  delivery .  415. 

constructive  delivery,  415. 


INDEX.  683 

Stoppage  in  transitu—  Continued. 

insufficient  delivery,  $  415. 

entry  at  custom-house,  415. 

intercepting  goods,  415. 
By  whom  right  exercised,  416. 

quasi  vendors,  etc.,  416. 

agent  without  special  authority,  416. 

buyer's  countermand,  etc.,  416. 
Mode  of  exercising  right,  417. 

demand,  notice,  etc.,  417. 

enforcing  by  action,  417. 

carrier's  liability,  417. 
Mode  of  defeating  right,  418. 

transfer  of  bill  of  lading,  418. 

good  faith  and  consideration,  418. 

mere  resale,  418. 

assignment  to  pay  debts,  418. 

creditor's  levy,  418. 

carrier's  lien  for  freight  charges,  418. 
Sub-sale,  loss  of  profits  on,  as  element  of  damages  for 
failure  to  deliver,  398. 

knowledge  of  sub-contract,  etc.,  399. 

and  estoppel  in  relation  to  seller's  lien,  410. 
Subject  of  sale.    See  THING  SOLD. 
Sunday  sales,  376. 
Superior  equity,  of  innocent  purchasei  from  fraudulent 

vendee,  198. 
Symbolical  delivery,  240. 

Tolegraph,  contract  by,  see  CONTRACT  BY  TELEGRAPH. 
Tender,  etc.,  273. 

of  payment  not  prerequisite  to  suit  for  failure  to 

deliver,  400. 
Thing  sold,  goods  subject  to  disposition  by  sale,  75. 

goods  mingled  with  others,  76. 

bargain  for  specific  quantity  of  grain,  77. 


684  INDEX. 

Thing  sold  —  Continued. 

identification  of  goods,  \  78. 

mistake  concerning,  379-383. 
In  general,  66. 

as  requisite  of  sale,  66. 

capability  of  severance  from  realty,  66. 

what  may  not  be  sold,  66. 

property  included  in  sale,  66. 
Privilege,  as  subject  of  sale  or  assignment,  67. 

illustrations,  67. 

newspaper  property.  67. 
Existence,  thing  no  longer  in,  68. 

thing  not  yet  in,  68. 

mere  possibility,  68. 
After-acquired  property,  69. 

agreement    to    sell    property    not    then    owned, 
69. 

sale  of  vested  interest,  69. 

vesting  of  title  subsequently  acquired,  69. 

confirmatory  act,  69. 

present  transfer  of  future  acquisitions,  69. 

rule  in  equity,  69. 

Things  in  action,  relation  to  statute  of  frauds,  277. 
Time,  of  delivery,  231. 

reasonable,  232. 

divisions  of,  233. 

computation  of,  234. 

of  performance  of  conditions  in  sales,  stipulations 

concerning,  297. 
Title,  risk  and,  161. 

to  undelivered  chattel,  164. 

state  of,  governs  in  successive  transfers,  170. 

only  from  owner,  etc.,  171. 

purchase  generally  from  one  lacking,  189. 

state  of,  governs  in  successive  transfers,  190. 


^•^?. 

?r)>i 


Title —  Continued. 

voidable  or  defeasible  purchaser  from  one  liavin 
2  192.  ^^^c'**  v£v  *^<^^^ 

of  innocent  purchaser  from  frau;9w?eS^-re:n'dee,  200. 

of  fraudulent  vendee,  202. 

transfer  of,  without  delivery,  224. 

delivery  to  pass,  253. 

reservation  of,  delivery  with,  299,  300. 

warranty  of,  324-330. 

in  buyer,  his  remedies  where,  401. 
Trading,  purchases  of  infant,  51. 

separate,  of   married   women,  58,  59.     See   SOLE 

TRADERS. 
Transfer  of  title,  by  sale,  in  general,  5. 

as  feature  of  sale,  5. 

immediate  or  postponed,  5. 

absolute  or  general,  5. 

In  relation  to  executory  sales,  intention  and  difficulty 
in  determining,  71,  72. 

passing  of  title  and  risk,  73. 

intention  to  retain  title,  79. 

intention  to  pass  title,  92. 

requisites  of,  in  case  of  sale  of  goods  to  be  manufac- 
tured, 116. 

relation  to  reservation  of  control,  144. 

without  delivery,  224. 

delivery  to  pass  title,  253. 
In  general,  153. 

importance  of  determining,  153. 

cash  sale  at  store  counter,  153. 

circumstances  complicating  point  of  transition,  153. 

uncertainty  concerning  thing  sold,  153. 

contract  or  conveyance,  154. 

bargain  and  sale,  or  executory  agreement,  154. 

privilege  of  repurchase,  154. 
NEWMARK  SALES.  — 58. 


686  INDEX. 

Transfer  of  title —  Continued. 
Intention,  to  pass  title,  \  155. 

express  or  presumed  intention,  155. 

distinct  manifestation  of  intention,  155. 

governs  in  general,  156. 

province  of  court  and  jury,  156. 

ascertainment  and  manifestation,  156. 

sufficiency  of,  157. 

meeting  of  minds,  etc.,  157. 

performance  or  waiver  of  condition,  157. 
Payment  or  delivery,  without,  158. 

English  statements  of  the  law,  158. 

American  statements  of  the  lawT,  158. 

payment  as  prerequisite  to  completion  of  sale,  158. 

payment  as  condition  precedent,  158. 

illustrative  cases,  158. 
Possession,  right  of,  159. 

completed  sale,  159. 

seller's  right  of  possession  till  price  paid,  159. 

credit  sale,  159. 
Risk,  change  of,  160. 

on  transfer  of  title,  160. 

without  delivery,  160. 

specification  of  goods  not  complete,  160. 

title  and,  161. 

risk  as  attending  title,  161. 

transfer  of  title,  161. 

assumption  of  risk,  161,  162. 

instances  of  assumption,  162. 

recovery  of  price  of  destroyed  goods,  162. 

stipulations  concerning   risk,  delivery,  payment, 
etc.,  163. 

consignee's  title,  risk,  and  liability  to  pay,  163. 

seller's  undertaking  to  deliver,  163. 

intermediate  arrangement,  163. 


INDEX.  687 

ansfer  of  title —  Continued. 

Delivery,  title  to  undelivered  chattel,  general  rule 
and  illustration,  $  164. 

sufficient  to  pass  title,  165. 

marking  landed  logs,  165. 

piano  left  to  be  finished,  165. 

delivery  to  common  carrier,  165. 

shipment  to  consignee,  165. 

as  prerequisite  to  transfer  of  title,  166. 

where  engagement  to  deliver  at  certain  place,  etc., 
166. 

applications  of  rule,  166. 

shipment  to  pay  for  advances,  166. 

when  not  such  prerequisite,  167. 

express  or  implied  intent,  167. 

when  intent  inferred,  167. 
Estoppel,  of  seller,  168. 

by  active  inducements,  etc.,  168. 

delay  in  bringing  replevin,  etc.,  168. 

of  warehouseman,  etc.,  169. 

against  seller  and  sub-buyer,  169. 

by  attainment  to  sub-vendee,  169. 

by  keeping  delivery  order,  169. 
Treasonable  transactions,  relation  to  illegality,  367, 
Trial,  sales  on,  308. 
Trover,  when  not  maintainable,  104. 

not  without  weighing  or  separation,  108. 
Trust,  distinguished  from  sale,  28. 
Unfinished  chattel,  sale  of,  119. 

title  to,  123,  124. 
Unfinished  vessels,  title  to,  124. 
Unspecified  chattels,  sales  of,  98-113. 

as  distinguished  from  sales  of  specified  chattels,  6, 

note  19. 
Need  of  specification ,  98. 


688  IXDEX. 

Unspecified  chattels  —  Continued. 

for  present  sale  of  chattels  not  specific,  §  98. 

illustrative  case,  98. 

statement  of  fundamental  rule*,  98. 

presumption  as  to  goods  not  separated,  etc.,  OS. 

reason  of  rule. 

object  to  be  effected,  99. 

identified  goods  with  price  ascertained,  99. 

specification  or  computation  of  value,  99. 
Identification,  100. 

need  and  requisites,  100. 

without  separation,  etc.,  100. 

pointing  out  or  marking,  100. 
Warehouse  receipt  for  undesignated  goods*  at  common 

law  and  under  statute,  101. 
Delivery  of  unidentified  goods,  102. 

does  not  determine  intention,  ln2. 

liability  for  loss,  102. 
Selection  and  separation,  103. 

for  identification  prerequisite  to  transfer  of  title,  103. 

applications  of  doctrine,  103. 

animals  not  selected  from  flock,  103. 

possession  taken  for  purposes  of  separation,  103 
When  trovernot  maintainable,  104. 

thing  to  be  done  by  vendor,  104. 

vendor's  power  of  selection,  104. 
Quasi  cotenancy,  105. 

apparent  exception  to  general  rule,  105. 

no  separation  necessary,  105. 
Estoppel  of  custodian,  106. 

warehouseman  accepting  order  for  goods,  106. 

difficulty  in  supporting  authorities,  106. 
Intension  and  indications  thereof,  107. 

intention  overcoming  presumption  against  transfer 
of  title,  107. 


INDEX.  689 

Unspecified  chattels  —  Continued. 

selection  and  separation,  or  separation  only,  \  107. 

purchaser  to  make  separation  after  delivery,  107. 
Weighing  or  separation,  108. 

for  identification,  etc.,  108. 

trover  not  maintainable  without,  108. 
Distinguishing  from  mass,  109. 

rule  requiring  separation,  109. 

applications  of  doctrine,  109. 

when  no  designation  necessary,  109. 

mass  of  uniform  character,  109. 
Uniform  mass,  no  selection  necessary  where,  110. 

need  of  selection  as  basis  of  requirement  of  separa- 
tion, 110. 

no  selection  or  separation  of  uniform  mass,  110. 
Intention  as  criterion,  111. 

slight  circumstances  utilized,  111. 

supplying  goods  of  particular  description,  111. 

advantage  derived  from  selection,  111. 

presumption  against  intention  to  pass  title,  111. 

when  separation  mere  ministerial  act,  111. 
Separation  from  uniform  mass,  1 1 2. 

selection  from  variable  bulk,  112. 

extension  in  England  to  uniform  mass,  112. 

distinctions  made,  112. 

conflict  in  American  decisions,  112. 

illustrative  cases,  113. 

holding  separation  necessary  and  otherwise,  113. 

destruction  of  flour  before  removal,  113. 
Usage,  proof  of,  in  relation  to  delivery,  254. 
Value,  price  or,  under  statute  of  frauds,  279. 
Voidable  contracts,  of  insane  persons,  46. 

of  intoxicated  persons,  47. 

and  other  transactions  of  infants,  48. 

trading  purchases  of  infants,  51. 


690  INDEX. 

Voidable  title,  purchase  from  one  having,  \  192. 

analysis  in  cases  of  fraudulent  transfers,  200. 
Voluntary  salo,  definition  of,  6.* 
Wagering  contracts,  369. 
Waivor,  of  notice  of  non-acceptance,  etc.,  by  seller,  204. 

of  objections  to  goods  by  buyer,  285,  266. 

of  condition  of  payment  by  delivery,  302,  303. 

of  written  notice  of  defects,  323. 
Warehouse  receipt,  216. 

for  tin  designated  goods,  101. 
Warehouseman,  delivery  to,  251. 
Warranty,  sales  with,  as  distinguished  from  others,  6. 

remedies  for  breach  of,  351-353. 
In  general,  315-323. 

definition,  315. 

distinguished  from  condition  and  fraud,  315. 

oral  or  written,  315. 

executory  contract,  on,  315. 

kinds,  316. 

express  and  implied,  316. 

warranty  of  title,  316. 

warranty  of  quality,  316. 

form  and  requisites,  317. 

affirmation  and  intention,  317. 

mode  of  expression,  317. 

time  of  making  and  operation,  317. 

expressions  of  opinion,  etc.,  318. 

distinguished  from  assertions  of  fact,  318. 

dealer's  talk,  etc.,  318. 

province  of  court  and  jury,  318.  . 

warranties  by  agents,  319. 

authority  from  custom,  319. 

warranties  implied  from  mode  of  sale,  319. 

warranties  by  special  agents,  319. 

oral  and  written,  319. 


INDEX.  691 

Warranty  —  Continued. 
patent  defects,  I  320. 
known  or  obvious  defects,  320. 
need  of  skill,  etc.,  320. 
artifice  to  conceal  defects,  320. 
covering  patent  defects,  320. 
liability  for  latent  defects,  320. 
patent  churn,  320. 

soundness  or  other  qualities  of  animals,  321. 
rule  concerning  unsoundness,  321. 
permanence  of  injury,  etc.,  321. 
stumbling  horse,  etc.,  321. 

I     construction  of  phraseology,  321. 
expressions  covering  character,  etc.,  321. 
qualified  or  conditional,  in  general,  322. 
rules  of  sales,  and  limitations  of  continuance,  322. 
test  and  trial  of  article,  322. 
notice  of  defects,  and  illustrations,  323, 
Of  title,  324-330. 
in  general,  324. 
transfer  of  interest,  etc.,  325. 
transfer  of  incorporeal  personalty,  326. 
general  doctrines,  327. 
seller's  possession,  328. 
breach  by  dispossession,  etc.,  329. 
existence  and  removal  of  encumbrances,  330. 
Of  quality,  see  WARRANTY  OF  QUALITY. 
Remedies  for  breach,  351-353,  403. 
in  general,  351. 

where  warranty  of  quality,  351. 
where  warranty  of  title,  351. 
evidence,  351. 

election  of  remedies,  promptness,  etc.,  403. 
return  of  goods,  352. 
not  necessary  to  obtaining  damages,  352. 


692  INDEX. 

Warranty  —  Continued. 

conflict  concerning  permissibility  of,  §  352. 

view  against  right  to  return,  352. 

Tiew  favoring  right  to  return,  352. 

damages,  353. 

in  general,  353. 

enhancement  of  damages,  353. 

no  knowledge  of  special  purpose,  353. 

place  of  computation,  etc.,  353. 

Warranty  of  quality,  316,  331-333,  334-340,  341-345,  346- 
348. 

in  general,  316. 

caveat  emptor,  331. 

implied,  333. 

inspection,  opportunity  for,  332. 
Caveat  emptor,  331. 

English  doctrine,  331. 

sound  price,  331. 

application  of  maxim,  331. 

latent  defects,  331. 

extent  of  exceptions,  331. 
Inspection,  opportunity  for,  332. 

want  of,  etc.,  332. 

specific  existing  goods,  332. 

poisonous  fodder  for  cattle,  332. 

conformity  of  goods  to  order,  332. 
Implied,  333. 

in  general,  333. 

sample,  on  sales  by,  333. 

description,  on  sale  by,  333. 

fitness  for  intended  purpose,  333. 

merchantable  character  of  goods  of,  333. 

provisions,  wholesomeness  of,  333. 

exact  thing  ordered,  supplying,  333. 

fertilizer,  sale  of  specific,  etc.,  333. 


INDEX.  693 

Warranty  of  quality  —  Continued. 
Sample,  sales  by,  $  334-340. 
exhibition  of  sample,  334. 
correspondence  of  bulk  with  sample,  334. 
when  does  not  make  sale  by  sample,  334. 
when  makes  sale  by  sample,  334. 
question  for  jury,  334. 
opportunity  to  examine  bulk,  335. 
examination  not  practicable  or  convenient,  335. 
examination  of  sample  as  essence  of  transaction,  335. 
scope  of  warranty  or  undertaking,  336. 
correspondence  in  quality,  336. 
correspondence  in  kind,  336. 
opportunity  of  comparison,  336. 
merchantable  character,  336. 
warranty  concerning  analysis,  336. 
mistake  in  drawing  sample,  336. 
"average  sample,"  336. 
acceptance,  coriclusiveness  of,  337. 
after  final  examination,  337. 
fraudulent  prevention  or  hindrance  of  examination, 

337. 

acceptance  of  part,  337. 
under  executory  contracts,  337. 
inspection,  finality  of,  338. 
by  official  inspector,  338. 
subsequent  to  original  delivery,  338. 
manufacturer,  liability  of,  339. 
fraudulent  knowledge  of  facts,  339. 
unknown  and  un discoverable  defects,  339. 
goods  rendered  unmerchantable,  339. 
buyer's  remedies,  310. 
right  of  returning  goods,  etc.,  340. 
mode  of  rejection,  340. 
effect  of  acceptance,  340. 


694  INDEX. 

Warranty  of  quality  —  Continued. 
Description,  sales  by,  §J  341-345. 

seller's  liability,  341. 

nature  of  undertaking,  341. 

agreement  to  fill  order,  341. 

doctrine  governing  sales  by  description,  341. 

undertaking  as  condition  or  warranty,  342. 

as  warranty,  as  contract,  and  as  condition,  342. 

other  views,  342. 

remedies  as  affecting  construction,  343. 

right  of  repudiation,  343. 

rescission  becoming  impossible,  343. 

representations  changing  from  conditions  to  war- 
ranties, 343. 

manufacturer,  liability  of,  344. 

warranty  of  merchantability  or  fitness,  344. 

ordinary  sales  by  description,  344. 

words  of  description,  345. 

may  amount  to  warranty,  345. 

oral  and  written  statements,  345. 

question  of  construction,  345. 

disinclination  to  construe  as  warranty,  345, 
Fitness,  etc.,  warranty  of,  346-348. 

fitness  for  particular  purpose,  346. 

merchantable  character,  347. 

provisions,  warranty  on  sale  of,  348. 
Fitness  for  particular  purpose,  warranty  of,  346. 

general  doctrine,  346. 

illustrative  cases,  346. 

knowledge  of  buyer's  intention,  etc.,  346. 

manufactured  article,  346. 
Merchantable  character,  warranty  of,  347. 

connection  with  other  warranties,  347. 

limitations  of  scope,  347. 
Provisions,  warranty  on  sale  of,  348. 


INDEX.  695 

Warranty  of  quality — Continued. 

English  view,  §  348. 

American  view,  348. 
Latent  defects,  whether  warranty  against,  349,  350. 

in  general,  349. 

lack  of  fault  or  knowledge  on  part  of  seller,  350. 

in  general,  349. 

sample  sale  by  dealer,  349. 

manufacturer's  sale,  349. 

grower's  liability,  349. 

executory  and  executed  contracts,  349. 

warranty  of  reasonable  fitness,  349. 

existing  specific  article,  349. 

statutory  regulation,  349. 

seller's  knowledge  or  fault  lacking,  350. 

question  in  England,  350. 

breaking  of  carriage-pole,  350. 

American  view,  350. 
Warranty  of  title,  324-330. 
In  general,  315,  324. 

derived  from  seller's  language,  conduct,  etc.,  324. 

on  executory  sale,  324. 

effect  of  fraud,  324. 

implied  warranty,  324. 

transfer  of  interest,  324. 

rebutting  presumption,  324. 
Transfer  of  interest,  etc.,  in  general,  325. 

official  sales,  325. 

pledged  or  mortgaged  chattels,  sales  of,  325. 
Incorporeal  personalty,  transfer  of,  326. 

warranty  of  title,  326. 

scope  and  application,  326. 

patent  rights,  326. 

General  doctrines,  concerning,  in  England,  in  Canada, 
and  in  United  States,  327. 


Warranty  of  title—  Continued. 

Seller's  possession,  as  determining  feature,  g  328. 

distinction  established,  328. 

qualification  of  doctrine,  328. 

constructive  possession,  328. 

inference  of  possession,  328. 

dispossession,  etc.,  breach  by,  329. 

need  of  eviction  or  disturbance  of  possession,  329. 

deprivation  of  possession  unnecessary,  329. 

express  and  implied  warranty  of  title,  329. 

surrender  of  property,  etc.,  329. 

encumbrances,  existence  and  removal  of,  330 

warranty  extends  to  encumbrances,  330. 

refusal  to  retain  goods,  330. 

paying  off  encumbrances,  330. 

express  warranty,  330. 
Weighing,  measuring,  etc.,  91. 

or  separation,  108. 

Wholes omeness,  of  provisions  for  food,  warranty  con- 
cerning, 348. 

Wives.    See  MARRIED  WOMEN. 
Written  sales.    See  STATUTE  OF  FRAUDS. 

as  evidentiary  matter,  requirement  of,  6. 


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